Construction, Forestry and Maritime Employees Union v Viridian Glass Pty Ltd

[2024] FWC 1805

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union

Viridian Glass Pty Ltd

(B2024/868)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 10 JULY 2024

Proposed protected action ballot of employees of Viridian Glass Pty Ltd

This is an application by the Construction, Forestry and Maritime Employees Union (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 Viridian Glass Pty Ltd (Viridian or Employer).

On 9 July 2024, the Commission was advised that the Employer, in effect, did not object to the Application.

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

On the basis of the material before me, including the declaration of Darren James Connelly, Victorian District Organiser, 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 it, 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.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

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 21 August 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776850.

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 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] This is, in effect, 30 working days from the making of the Order, as required by the AEC.

Printed by authority of the Commonwealth Government Printer

< PR776851>

CaseChat Overview and Summary

The Construction, Forestry and Maritime Employees Union (CFMEU) filed an application under section 437 of the Fair Work Act 2009, requesting a protected action ballot order concerning certain employees of Viridian Glass Pty Ltd. The employer, Viridian, did not object to the application. Deputy President Wright of the Fair Work Commission decided to proceed with the determination based on the submitted documents, without the need for a hearing.

The legal issues before the court involved verifying whether the CFMEU had genuinely attempted to reach an agreement with the employer and whether all the statutory requirements for a protected action ballot were satisfied. The court had to ascertain if the notification period for the proposed agreement was met and if the conditions outlined in section 443(1) of the Act were fulfilled.

After reviewing the evidence, Deputy President Wright concluded that the CFMEU had genuinely tried to negotiate with Viridian and that all the requirements for a protected action ballot were met. The Australian Electoral Commission was designated to conduct the ballot, with voting to close on 21 August 2024. An order was issued, and the matter will be reassigned to another member of the Commission to handle the compulsory conciliation conference under section 448A. This member will also issue an order for the bargaining representatives to attend the conference, likely with additional directions to facilitate meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established