Construction, Forestry and Maritime Employees Union v O'Brien Glass Industries Ltd

[2023] FWC 3173

[2023] FWC 3173

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

O'Brien Glass Industries Ltd

(B2023/1318)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 1 DECEMBER 2023

Proposed protected action ballot of employees of O'Brien Glass Industries Ltd

1. This is an application by the Construction, Forestry and Maritime Employees Union[1] (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of O'Brien Glass Industries Ltd (O’Brien Glass or Employer). 

1. On 30 November 2023, the Commission was advised that O’Brien Glass did not, in effect, object to the Application.

1. In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

1. On the basis of the material before me, including the declaration of Mr Kane Lowth, Divisional Branch Assistant Secretary, setting out the steps taken by the CFMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with O’Brien Glass, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.  

1. I have also included the Commission’s standard preamble in clause 5 of the Order to provide some context for the ballot questions.

1. The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act[2] and consequently is authorised to conduct the ballot.

1. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 20 December 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR768878.

1. This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] The revised name of the Applicant as applying from 1 December 2023 has been adopted, and permission granted to amend the application given to the extent necessary.

[2] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400.

[3] This is, in effect, ten (10) working days after the expected “Commencement Date” of the ballot, as sought in the application and draft order.

Printed by authority of the Commonwealth Government Printer

<PR768879>