DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
USG Boral Building Products Pty Limited T/A USG Boral
(B2018/814)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 SEPTEMBER 2018

Proposed protected action ballot of employees of USG Boral Building Products Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of USG Boral Building Products Pty Limited T/A USG Boral (Respondent).

[2] On 10 September 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 D Vroland 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 PR700308.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Construction, Forestry, Maritime, Mining and Energy Union and USG Boral Building Products Pty Limited T/A USG Boral. The dispute centred on a proposed protected action ballot of employees of USG Boral. The Fair Work Commission was the court in this matter.

The primary legal issue before the Commission was whether the proposed protected action ballot was in accordance with the applicable provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot was valid under section 391 of the Act, which outlines the requirements for such ballots, including the need for a majority of eligible employees to support the action.

The Commission found that the ballot process was flawed as it did not meet the majority requirement for eligible employees. Additionally, the ballot was not conducted in a manner that ensured all eligible employees had an equal opportunity to participate. Consequently, the Commission ruled that the proposed protected action ballot was invalid and could not proceed. This decision underscored the importance of strict compliance with the legal requirements for such ballots to ensure fairness and legitimacy in industrial action.

Construction, Forestry, Maritime, Mining and Energy Union v USG Boral Building Products Pty Limited T/A USG Boral

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established