DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
USG Boral Building Products Pty Limited
(B2017/1025)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 OCTOBER 2017

Proposed protected action ballot of employees of USG Boral Building Products Pty Limited.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of USG Boral Building Products Pty Limited (Respondent).

[2] On 30 October 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 G Rogers 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 PR597279.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia lodged an application against USG Boral Building Products Pty Limited. The union sought to hold a ballot among its members, who were employees of USG Boral, for the purpose of determining whether to engage in protected action. The union intended to take this action in response to what it perceived as unfair labour practices by the company.

The legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, specifically sections concerning the right of employees to engage in protected industrial action and the process for holding a protected action ballot. The central question was whether the union had complied with the statutory requirements for conducting such a ballot, particularly in relation to the timing and notice provisions. Additionally, the Commission needed to assess whether the proposed action was in response to an adverse action taken by the employer, as defined by the Act.

The Commission examined the evidence and submissions from both parties to determine if the union had met the legislative criteria for holding a protected action ballot. It considered the procedural aspects, including whether the union had provided adequate notice to the employer and whether the ballot was being held for a protected action purpose. The Commission found that the union had not sufficiently demonstrated that the proposed action was in direct response to an adverse action taken by the employer, nor had it complied with the requisite procedural steps. Consequently, the Commission determined that the union's application to hold the ballot was not valid under the Act.

As a result of this determination, the Commission dismissed the union's application. The union was not permitted to proceed with the ballot as initially proposed, and no protected action could be taken based on that ballot. The decision underscored the importance of adhering to statutory requirements when seeking to engage in protected industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v USG Boral Building Products 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