DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Viridian Glass Pty Ltd T/A Viridian Glass
(B2021/594)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 JULY 2021

Proposed protected action ballot of employees of Viridian Glass Pty Ltd T/A Viridian Glass.

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

[2] On 27 July 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Steven Abboushi 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 PR732190.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission heard a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Viridian Glass Pty Ltd, trading as Viridian Glass, concerning a proposed protected action ballot of the employees of Viridian Glass. The Union sought to conduct a ballot of its members employed by Viridian Glass to determine whether they wished to take protected industrial action. Viridian Glass opposed the ballot, arguing that it was not covered by the relevant industrial instrument and that the Union did not have the requisite majority support of employees.

The central legal issue before the Commission was whether the Union had the necessary majority support of employees to conduct a protected action ballot. The Commission considered whether the Union's claim of majority support was sufficient, given that the relevant industrial instrument required a majority of employees in the enterprise to support the ballot. The Commission also considered whether the Union's method of determining majority support was appropriate and whether it complied with the relevant provisions of the Fair Work Act 2009.

The Fair Work Commission found that the Union had the necessary majority support of employees to conduct the proposed ballot. The Commission held that the Union's method of determining majority support was appropriate and that it complied with the relevant provisions of the Fair Work Act. The Commission noted that the Union had provided evidence of majority support in the form of signed membership lists and that this evidence was sufficient to establish the requisite majority. The Commission also held that the relevant industrial instrument did not preclude the Union from conducting the ballot, as it did not specify a particular method of determining majority support.

The Fair Work Commission granted the Union's application to conduct the proposed ballot of its members employed by Viridian Glass. The Commission ordered that the ballot be conducted in accordance with the relevant provisions of the Fair Work Act and the industrial instrument. The Commission also ordered that Viridian Glass provide the Union with access to its employees and premises for the purpose of conducting the ballot.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established