Construction, Forestry, Maritime, Mining and Energy Union v Construction Glazing Pty Ltd T/A Construction Glazing

[2023] FWC 2717

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry, Maritime, Mining and Energy Union

Construction Glazing Pty Ltd T/A Construction Glazing

(B2023/1109)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 19 OCTOBER 2023

Proposed protected action ballot of employees of Construction Glazing Pty Ltd

This is an application by the Construction, Forestry, maritime and Energy Union (CFMMEU 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 Construction Glazing Pty Ltd T/A Construction Glazing (Construction Glazing or Employer).

On 19 October 2023, the Commission was advised that Construction Glazing did not wish to express a view about 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 David Kirner, SA District Secretary, setting out the steps taken by the CFMMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Construction Glazing, 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. 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 30 November 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR767352.

Following consultation with the parties, Clause 3 of the proposed order was amended to clarify how the group of employees to be balloted was stated.
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]. This follows consultation with the parties and is, in effect, 30 working days from the date of effect of the Order, which is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Construction Glazing Pty Ltd T/A Construction Glazing. The union sought to conduct a ballot to potentially undertake protected industrial action due to an ongoing dispute with the employer regarding a proposed enterprise agreement. Construction Glazing indicated it did not wish to express a view on the application, prompting the Commission to decide the matter based on the available documentation.

The primary legal issue for the Commission to address was whether the union had fulfilled all necessary conditions to be granted the protected action ballot order. This included verifying that the union had genuinely attempted to reach an agreement with the employer and that the union's proposed ballot met the statutory requirements under the Fair Work Act. The union's declaration by David Kirner, SA District Secretary, outlined the steps taken in bargaining with the employer and the union's ongoing efforts to reach an agreement.

In deciding the application, Deputy President Hampton found that the union had satisfied all the prerequisites for a protected action ballot. The declaration provided sufficient evidence that the union had genuinely attempted to negotiate with the employer and that a notification period was applicable. Consequently, the Commission determined that the voting period for the ballot would close on 30 November 2023, establishing the ballot period under the Act. The Commission also issued a separate order to clarify the group of employees to be balloted and scheduled a compulsory conciliation conference to facilitate further negotiations between the parties.

This decision resulted in an order granting the union's application for a protected action ballot, setting the closing date for voting, and outlining the forthcoming conciliation conference. The matter was then assigned to another Commission member for the compulsory conciliation conference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established