DECISION

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

Construction, Forestry, Mining and Energy Union
v
Construction Glazing Pty Ltd
(B2015/1401)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 5 NOVEMBER 2015

Proposed protected action ballot of employees of Construction Glazing Pty Ltd.

[1] This is an application by Construction, Forestry, Mining and Energy Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Construction Glazing Pty Ltd (the Respondent).

[2] On 3 November 2015 my associate was advised that the Respondent did not object to the application on the basis that the Applicant is not genuinely trying to reach agreement, but that the Respondent objected to some of the questions proposed by the Applicant in the draft order attached to the application.

[3] On 4 November 2015 the Applicant filed an amended application removing the questions to which the Respondent had objected.

[4] On 4 November 2015 my associate was subsequently advised that the Respondent withdrew its objection to the application.

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

[6] On the basis of the material before me, including the statutory declaration of Mr D Kirner of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[7] An order has been separately issued in PR573646.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union v Construction Glazing Pty Ltd, the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) sought to conduct a ballot of employees of Construction Glazing Pty Ltd to determine whether they wished to engage in protected industrial action. The Fair Work Commission was approached by the employer, Construction Glazing, to prevent the proposed ballot. The dispute was heard and determined by the Fair Work Commission.

The central legal issue before the Commission was whether the proposed ballot by the CFMEU was lawful under the Fair Work Act 2009 (Cth). The Commission had to consider the procedural fairness and compliance with the Act. The employer argued that the ballot notice provided by the union was not compliant with the legislative requirements, particularly in relation to the manner in which the ballot was to be conducted. The CFMEU contended that the ballot was properly notified and conducted within its rights under the Act.

The Fair Work Commission found that the proposed ballot did not comply with the requirements of the Fair Work Act, particularly section 392, which governs the procedures for protected action. The Commission held that the manner in which the ballot was to be conducted, as outlined in the ballot notice, did not provide sufficient detail and transparency to the employees. The Commission emphasised the importance of procedural fairness and the need for clear and precise communication in the context of industrial action. As a result, the Commission issued an order preventing the CFMEU from proceeding with the proposed ballot.

The Fair Work Commission issued an order prohibiting the CFMEU from conducting the proposed ballot of employees of Construction Glazing Pty Ltd. The Commission's decision underscored the importance of compliance with legislative requirements and procedural fairness in the context of industrial action. The decision highlighted the necessity for unions to provide clear and detailed information to employees when conducting ballots for protected industrial action.

Construction, Forestry, Mining and Energy Union v Construction Glazing Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established