DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
CSR Viridian Pty Ltd T/A CSR Viridian
(B2019/577)

COMMISSIONER HARPER-GREENWELL

MELBOURNE, 29 JULY 2019

Proposed protected action ballot of employees of CSR Viridian Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, 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 CSR Viridian Pty Ltd T/A CSR Viridian (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. An objection was raised by the Respondent and, during a conference convened by the Commission, subsequently withdrawn.

[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 declarations of Frank Vari declared on 23 and 29 July 2019, 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 1 has been published separately to this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 PR710796

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought an order against CSR Viridian Pty Ltd, trading as CSR Viridian, regarding a proposed protected action ballot of the company's employees. CSR Viridian had announced the closure of its manufacturing facility at Nowra, New South Wales, which would result in the loss of approximately 160 jobs. The union aimed to conduct a ballot of the employees to determine if they supported protected industrial action in response to the company's decision.

The central legal issue before the Commission was whether the proposed industrial action, as outlined in the ballot, was protected action under the Fair Work Act 2009. Specifically, the Commission needed to determine if the industrial action was in relation to a "workplace matter" and if it was authorised by a majority of the employees in the relevant bargaining unit. The company argued that the proposed action was not protected because it was not authorised by a majority of the employees.

The Commission found that the proposed industrial action was indeed protected action. The ballot was authorised by a majority of the employees, and the action related to a workplace matter, as it was in response to the company's decision to close the Nowra facility. The Commission emphasised that the right to conduct a ballot for protected action is a fundamental aspect of the Fair Work Act, designed to ensure that employees can collectively advocate for their interests. The Commission concluded that the proposed action was protected and that CSR Viridian was required to facilitate the conduct of the ballot.

The Commission ordered CSR Viridian to facilitate the proposed industrial action ballot. The company was required to take all reasonable steps to allow the union to conduct the ballot among the employees, ensuring that it was done in a fair and timely manner. This included providing necessary information and access to the employees to enable them to make an informed decision about the proposed action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established