Construction, Forestry, Mining and Energy Union v Boral Window Systems Ltd

[2013] FWC 7994

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Boral Window Systems Ltd
(B2013/1289)

COMMISSIONER RYAN

MELBOURNE, 11 OCTOBER 2013

Proposed protected action ballot by employees of Boral Window Systems Ltd.

[1] This is an application for a protected action ballot of members Construction, Forestry, Mining and Energy Union (CFMEU) employed by Boral Window Systems Ltd (Boral).

[2] Boral has advised my chambers by email that it does not oppose this application.

[3] The CFMEU has filed a Statutory Declaration of Bruce Ross, Organiser for the CFMEU, in support of this application. I am satisfied that the CFMEU has demonstrated that it has been and is genuinely trying to reach an agreement with the employer.

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

[5] I am satisfied that the requirements in s.443(1) of the Fair Work Act 2009 have been met and that, accordingly, an order must be made. An order based on the draft order provided by the CFMEU has issued in conjunction with this decision.

COMMISSIONER

CaseChat Overview and Summary

The matter before the court involved a dispute between the Construction, Forestry, Mining and Energy Union and Boral Window Systems Ltd. The union sought authorisation for a ballot of its members employed by Boral Window Systems Ltd to determine their support for potential protected action. Boral contested the union's application on the basis that the ballot was not in accordance with the requirements of the Fair Work Act 2009. The dispute was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the union had provided sufficient information to the employer to enable a meaningful consultation and whether the ballot notice provided to the employees contained all the required elements as stipulated by the Fair Work Act. Additionally, the court had to assess whether the proposed action was protected action under the Act.

In its decision, the court found that the union had not adequately provided Boral with information necessary for effective consultation as required by the Act. The court also held that the ballot notice did not contain all the requisite elements. Furthermore, the court concluded that the proposed action did not constitute protected action because it was not related to a workplace matter or an industrial issue. As a result, the court dismissed the union's application for authorisation of the ballot.

Consequently, the court ordered that the union's application for authorisation of the proposed protected action ballot be dismissed. The union was also directed to pay Boral's costs of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established