DECISION

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

Construction, Forestry, Mining and Energy Union
v
Lend Lease Building Pty Limited and Lend Lease Building Contractors Pty Limited
(B2016/946)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 SEPTEMBER 2016

Proposed protected action ballot of employees of Lend Lease Building Pty Limited and Lend Lease Building Contractors Pty Limited.

[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 Lend Lease Building Pty Limited and Lease Building Contractors Pty Limited (the Respondent).

[2] On 1 September 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, and the witness statement attached thereto, of Mr J Ingham 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 PR584964.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Construction, Forestry, Mining and Energy Union, on behalf of its members employed by Lend Lease Building Pty Limited and Lend Lease Building Contractors Pty Limited, and the two companies. The union sought approval for a protected action ballot to be held among its members employed by the companies. The ballot was intended to seek authorisation for potential protected actions, including strikes and bans on overtime and penalty rates. The companies opposed the ballot, contending that it would cause significant harm to their business operations and that the union had not fulfilled certain statutory requirements.

The primary legal issues before the court were whether the union had satisfied the prerequisites under the Fair Work Act 2009 for holding a protected action ballot and whether the ballot would cause unreasonable harm to the companies' business operations. The court needed to balance the union's right to organise and take protected industrial action against the potential harm to the companies and their employees. The companies argued that the ballot would lead to substantial disruptions, potentially affecting ongoing projects and causing financial losses. The union contended that the ballot was necessary to address workplace issues and that the potential harm was not unreasonable or disproportionate.

The court examined the union's application and the companies' opposition, considering statutory provisions and relevant case law. It found that the union had met the necessary criteria for holding the ballot, including providing the requisite details and ensuring the ballot's purpose was genuine. However, the court also noted that the potential harm to the companies' business operations was significant and could affect the livelihood of many employees. Ultimately, the court determined that the potential harm was not unreasonable and granted the union's application, allowing the ballot to proceed. The court's decision was influenced by the need to protect the union's right to organise and the fact that the companies had not demonstrated that the harm would be disproportionate to the union's objectives.

Construction, Forestry, Mining and Energy Union v Lend Lease Building Pty Limited and Lend Lease Building Contractors Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established