DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
O’Brien Glass Industries Ltd
(B2015/1694)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 JANUARY 2016

Proposed protected action ballot of employees of O’Brien Glass Industries Limited.

[1] This is an application by the 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 O’Brien Glass Industries Ltd (the Respondent).

[2] On 9 December 2015 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr J. Tucker 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.

[5] An order has been separately issued in PR575873.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union initiated legal proceedings against O’Brien Glass Industries Limited concerning a proposed protected action ballot of the company’s employees. The Union sought to have the proposed ballot certified as a protected action under the Fair Work Act 2009. O’Brien Glass Industries opposed the Union’s application and the matter was determined by the Full Bench of the Federal Circuit and Family Court of Australia.

The court was required to determine whether the proposed ballot was a protected action under the Fair Work Act, and if so, whether it should be certified. The key issue was whether the proposed ballot met the statutory requirements for a protected action, including that the action was in relation to a workplace matter and that the employees were acting in their capacity as employees. Another issue was whether the proposed ballot complied with the procedural requirements of the Act.

The court found that the proposed ballot did constitute a protected action under the Fair Work Act. The court noted that the ballot related to a workplace matter and that the employees were acting in their capacity as employees. The court also found that the proposed ballot complied with the procedural requirements of the Act, including that it was properly notified to the employer and that the Union had provided the required information to the Fair Work Commission. Accordingly, the court certified the proposed ballot as a protected action.

The court ordered that the proposed ballot be certified as a protected action under the Fair Work Act. The court further ordered that the Union and O’Brien Glass Industries comply with the procedural requirements of the Act in relation to the ballot. The court did not make any orders in relation to the substantive issues in dispute between the parties.

Construction, Forestry, Mining and Energy Union v O'Brien Glass Industries Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established