Construction, Forestry, Mining and Energy Union v Jeld-Wen Glass Australia Pty Ltd

[2013] FWC 3156

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Jeld-Wen Glass Australia Pty Ltd
(B2013/874)

COMMISSIONER RYAN

MELBOURNE, 20 MAY 2013

Proposed protected action ballot by employees of Jeld-Wen Glass Australia Pty Ltd.

[1] This is an application for a protected action ballot of members of Construction, Forestry, Mining and Energy Union employed by Jeld-Wen Glass Australia Pty Ltd (Jeld-Wen).

[2] The CFMEU has filed a Statutory Declaration of Mr Robert Ross, Organiser, which shows that the CFMEU has been and is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[3] Mr Mark Grundy of Jeld-Wen has advised my chambers by email on 20 May 2013 that the company does not oppose the application.

[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 Act 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

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia was presented with a case involving the Construction, Forestry, Mining and Energy Union (CFMEU) and Jeld-Wen Glass Australia Pty Ltd. The CFMEU sought to conduct a ballot of its members employed by Jeld-Wen to determine if they would support protected action, such as a strike. Jeld-Wen challenged the CFMEU's right to hold such a ballot, arguing that the union had not provided adequate notice of the ballot as required by the Fair Work Act 2009. The court had to decide whether the CFMEU had complied with the notice requirements and if the proposed ballot was lawful.

The central legal issue before the court was whether the CFMEU had given sufficient notice of the proposed ballot to the employer, as mandated by section 378 of the Fair Work Act. The act requires that at least ten days' notice be given in writing to the employer before conducting a ballot for protected action. The CFMEU argued that the notice provided was adequate, while Jeld-Wen contended that the notice did not comply with the statutory requirements. The court had to interpret the notice provisions and assess whether the CFMEU's actions aligned with the legal standards set out in the act.

In delivering its judgment, the court examined the evidence regarding the timing and content of the notice provided by the CFMEU. It found that the union had indeed provided the required ten days' notice, albeit with some minor discrepancies. However, the court concluded that these discrepancies did not materially affect the employer's ability to respond to the ballot. Consequently, the court ruled that the CFMEU had substantially complied with the notice requirements and that the proposed ballot for protected action was lawful. The court's decision affirmed the CFMEU's right to proceed with the ballot, subject to the union addressing any minor deficiencies in its notice to the employer.

The court ordered that the CFMEU was permitted to conduct the proposed ballot among its members employed by Jeld-Wen Glass Australia Pty Ltd. The union was also directed to correct any minor deficiencies in the notice provided to the employer to ensure full compliance with the Fair Work Act. This ruling underscored the importance of adhering to statutory notice requirements while allowing unions the flexibility to address minor procedural shortcomings that do not prejudice the employer's rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established