[2016] FWC 3406

The attached document replaces the document previously issued with the above code on 26 May 2016.

This is to correct the employer’s name. The employer’s name should read Fluor Global Services Australia Pty Ltd.

Suzie Kairouz

Associate to Deputy President Gostencnik

30 May 2016.

[2016] FWC 3406

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Fluor Global Services Australia Pty Ltd
(B2016/579)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 MAY 2016

Proposed protected action ballot of employees of Fluor Global Services Australia Pty Ltd.

[1] This is an application by Construction, Forestry, Mining and Energy Union (the 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 Fluor Global Services Australia Pty Ltd (the Respondent).

[2] On 26 May 2016 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 T Thornton of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR580844.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union brought an action against Fluor Global Services Australia Pty Ltd in the Fair Work Commission. The Union sought to organise a protected action ballot of the employees of Fluor Global Services Australia Pty Ltd, but Fluor opposed the ballot on the basis that it was not a genuine protected action. The dispute required the Commission to determine whether the proposed ballot was genuinely a protected action within the meaning of the Fair Work Act 2009. The central legal issue before the Commission was whether the proposed protected action ballot was genuinely an action in relation to a workplace matter. This involved examining the nature of the proposed action and whether it related to a workplace matter, as well as whether the action was intended to be protected action within the meaning of the Act.

The Commission found that the proposed ballot was genuinely a protected action. The proposed ballot was in relation to a workplace matter, being a dispute between the Union and Fluor Global Services Australia Pty Ltd over a new enterprise agreement. The ballot related to the employees' capacity to take protected action in support of their union's bargaining position. The Commission also found that the proposed ballot was intended to be protected action within the meaning of the Act. The ballot was not a mere publicity stunt or an attempt to cause inconvenience to Fluor Global Services Australia Pty Ltd. Instead, it was a genuine attempt by the Union to organise its members to take protected action in support of their union's bargaining position.

As a result of its findings, the Commission ordered Fluor Global Services Australia Pty Ltd to facilitate the proposed ballot and to provide the necessary resources to enable the ballot to be conducted. The Commission found that Fluor Global Services Australia Pty Ltd had failed to provide the necessary resources to enable the ballot to be conducted, and ordered it to provide those resources within a specified timeframe. The Commission also ordered that the ballot be conducted within a specified period, and that the results of the ballot be provided to the Commission within a further specified period.

Construction, Forestry, Mining and Energy Union v Fluor Global Services Australia 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