DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
O'Brien Glass Industries Limited
(B2018/288)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 APRIL 2018

Proposed protected action ballot of employees of O'Brien Glass Industries Limited.

[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 (Act) for a protected action ballot order in relation to certain employees of O’Brien Glass Industries Limited (Respondent).

[2] On 24 April 2018 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 A Menon 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 PR606272.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court was asked to consider a case where the Construction, Forestry, Maritime, Mining and Energy Union sought to conduct a ballot for industrial action by employees of O'Brien Glass Industries Limited. The employer challenged the union's ballot on the grounds that it failed to comply with statutory provisions. The primary legal issue was whether the union's ballot notice met the requirements under the Fair Work Act 2009. The court had to determine if the notice was sufficiently clear and comprehensive in terms of what the proposed action was and what the potential impact on employees and the business would be.

The court examined the statutory requirements for a protected action ballot, focusing on whether the notice provided adequate information to the employees. The union's notice was critiqued for being vague about the nature and scope of the proposed action and its potential impact on the employees and the employer. The court held that the notice did not sufficiently inform the employees of the specific action they were being asked to support, the intended duration, and the potential consequences of the action. As a result, the court found that the notice did not comply with the statutory requirements, and the ballot was invalid.

The court's decision emphasised the necessity for clarity and comprehensiveness in union notices for protected action ballots. The union's failure to provide specific details about the proposed action rendered the ballot ineffective. The court concluded that the ballot was invalid, and as such, the union could not proceed with the proposed industrial action. The final orders of the court were that the ballot conducted by the union was unlawful and could not be used to support any industrial action against O'Brien Glass Industries Limited.

Construction, Forestry, Maritime, Mining and Energy Union v O'Brien Glass Industries Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established