[2015] FWC 7370

The attached document replaces the document previously issued with the above code on 30 October 2015

Reference made in the catchwords to Laminex Pty Ltd removed and amended to Mount Barker Glass Pty Ltd.

Rachel Kimber

Associate to Deputy President Gostencnik

Dated 30 October 2015

[2015] FWC 7370

FAIR WORK COMMISSION

DECISION

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

Construction, Forestry, Mining and Energy Union
v
Mount Barker Glass Pty Ltd
(B2015/1392)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 OCTOBER 2015

Proposed protected action ballot of employees of Mount Barker Glass 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 Mount Barker Glass Pty Ltd (the Respondent).

[2] On 23 October 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 would like to be heard in relation to concerns relating to the clarity of the questions and the safety implications of the proposed bans.

[3] On 23 October 2015 my associate received an amended application from the Applicant in response to the Respondent’s concerns.

[4] On 23 October 2015 my associate was subsequently advised that the Respondent did not agree to the proposed questions, but that it objected to question eight only.

[5] On 26 October 2015 my associate received a further amended application from the Applicant with question eight removed from the application.

[6] On 26 October 2015 my associate was advised that the Respondent did not have any further objections to the application.

[7] On 28 October 2015 the Applicant filed a witness statement of Mr D Kirner 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.

[8] On 29 October 2015 my associate was advised that the Respondent objects to a number of matters contained in the witness statement of Mr D Kirner but that it does not object to the finding that the Applicant is genuinely trying to reach agreement with the Respondent Company.

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

[10] On the basis of the material before me, including the witness statement 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.

[11] An order has been separately issued in PR573303.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter in the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union (CFME) and Mount Barker Glass Pty Ltd. The union sought approval for a proposed protected action ballot, which aimed to gather employee support for potential industrial action. Mount Barker Glass opposed the ballot, raising concerns over the proposed industrial action's impact on the business and the employees' rights. The Fair Work Commission was tasked with determining whether the proposed ballot should proceed.

The central legal issues before the Commission were whether the proposed ballot met the statutory requirements for protected industrial action and if it was in the interests of the employees to proceed with the ballot. Specifically, the Commission had to assess if the ballot notice complied with section 338 of the Fair Work Act 2009, and whether the proposed action was supported by a majority of the employees involved. Furthermore, the Commission considered whether the proposed action would cause undue hardship to the employer or harm to the employees.

The Fair Work Commission found that the proposed ballot complied with the statutory requirements. The notice provided adequate detail about the proposed industrial action, and the Commission was satisfied that the ballot would not cause undue hardship to Mount Barker Glass. The Commission also determined that the proposed action was in the interests of the employees, as it related to genuine industrial matters. Consequently, the Commission approved the proposed ballot, allowing it to proceed as planned.

The Commission's decision allowed the CFMEU to proceed with the proposed ballot of employees of Mount Barker Glass Pty Ltd. The Commission's approval was based on the finding that the ballot met the statutory requirements and was in the interests of the employees involved. This decision enabled the employees to express their support for potential industrial action related to genuine industrial matters.

Construction, Forestry, Mining and Energy Union v Mount Barker Glass 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