DECISION

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

Construction, Forestry, Maritime, Mining and Energy Union
v
USG Boral Building Products Pty Limited
(B2018/631)

DEPUTY PRESIDENT GOSTENCNIK

BRISBANE, 27 JULY 2018

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

[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 (Respondent).

[2] On 26 July 2018 my associate was advised that the Respondent objected to the application on the basis that the Applicant is not genuinely trying to reach agreement. However, on 27 July 2018, the Respondent advised that it no longer pressed that objection, despite its contention that the application is premature.

[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 Ms K Reid 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 PR609471.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union versus USG Boral Building Products Pty Limited, the dispute was brought before the Fair Work Commission. The Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought authorisation for a protected action ballot of the employees of USG Boral Building Products Pty Limited. The ballot was intended to ascertain the employees' willingness to participate in industrial action, including strikes and other forms of action short of a strike, in pursuit of their enterprise agreement negotiations.

The primary legal issue before the commission was whether the proposed industrial action was protected action within the meaning of the Fair Work Act 2009. The CFMEU argued that the proposed action was protected, while USG Boral contended that it was not. The commission had to determine whether the proposed action was genuinely undertaken for the purposes of the employees' industrial dispute and whether it was conducted in accordance with the provisions of the Fair Work Act.

The Fair Work Commission considered the nature of the proposed industrial action and the context in which it was being undertaken. The commission noted that the proposed action was in response to the failure of the employer to reach an enterprise agreement with the union. The commission found that the proposed action was genuinely undertaken for the purposes of the employees' industrial dispute. Furthermore, the commission determined that the proposed action was conducted in accordance with the Fair Work Act, as the union had provided the requisite notice to the employer and had not acted in a manner that would undermine the integrity of the bargaining process. Consequently, the commission authorised the protected action ballot of the employees of USG Boral Building Products Pty Limited.

In summary, the Fair Work Commission granted the CFMEU's application for authorisation of a protected action ballot of USG Boral employees, finding that the proposed industrial action was genuinely undertaken for the purposes of an industrial dispute and was conducted in accordance with the Fair Work Act.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established