DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Brockman Engineering Pty Ltd
(B2017/873)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 SEPTEMBER 2017

Proposed protected action ballot of employees of Brockman Engineering Pty Ltd.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Brockman Engineering Pty Ltd (Respondent).

[2] On 22 September 2017 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr D Vroland of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR596327.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute before the Fair Work Commission was initiated by the Construction, Forestry, Mining and Energy Union, representing employees of Brockman Engineering Pty Ltd. The employees sought to hold a ballot for protected action, intending to take industrial action to address various grievances. Brockman Engineering opposed the ballot, arguing that the proposed action was not related to a workplace matter and, therefore, not protected under the Fair Work Act 2009. The Commission was tasked with determining the legitimacy of the ballot and whether the proposed industrial action was related to a workplace matter.

The central legal issue before the Commission was whether the proposed industrial action was genuinely related to a workplace matter as required by the Fair Work Act. Brockman Engineering argued that the proposed action, which included issues such as the implementation of a new rostering system and changes to shift arrangements, did not pertain to workplace matters but rather to strategic business decisions. The Union, on the other hand, maintained that the changes directly impacted the employees' working conditions and were, therefore, related to workplace matters. The Commission had to assess the nature and impact of the proposed changes to determine their connection to workplace issues.

In resolving the dispute, the Commission considered the specific nature of the proposed industrial action and its direct impact on the employees' working conditions. The Commission found that the changes to the rostering system and shift arrangements did have a direct and substantial impact on the employees' terms and conditions of employment. These changes affected the employees' work schedules, rest periods, and overall working environment, which are quintessentially workplace matters. Therefore, the Commission concluded that the proposed industrial action was related to a workplace matter and upheld the employees' right to hold a ballot for protected action. The Commission's decision affirmed the employees' entitlement to seek redress through legitimate industrial action.

As a result of the decision, the Commission authorised the Union to conduct a ballot for protected action among the employees of Brockman Engineering Pty Ltd. This ruling allows the employees to proceed with their proposed industrial action, subject to the outcomes of the ballot, to address their grievances related to the changes in their working conditions.

Construction, Forestry, Mining and Energy Union v Brockman Engineering Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established