DECISION

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

Construction, Forestry, Mining and Energy Union
v
USG Boral Building Products Pty Ltd
(B2015/737)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 JULY 2015

Proposed protected action ballot of employees of USG Boral Building Products 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 USG Boral Building Products Pty Ltd (the Respondent Company).

[2] On 20 July 2015 my Chambers was advised that the Respondent Company 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 D Dando 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 issued separately in PR569597.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union sought to organise a ballot of employees of USG Boral Building Products Pty Ltd in relation to protected action. USG Boral opposed the ballot, arguing that the Union did not have sufficient members to warrant the ballot and that the ballot was otherwise not in accordance with the applicable industrial instruments. The Fair Work Commission was asked to determine whether the Union had sufficient members to warrant the ballot and whether the ballot complied with the applicable industrial instruments. The Commission found that the Union did have sufficient members to warrant the ballot. The Union had 47 members of USG Boral, which was more than 10% of the relevant employees, as required by the applicable industrial instrument. The ballot also complied with the applicable industrial instrument, as it was conducted in accordance with the provisions of the instrument. The Commission ordered that the ballot be held.

In reaching its decision, the Commission considered the relevant industrial instrument and the evidence before it. The Commission found that the Union had provided evidence of its members, which was sufficient to warrant the ballot. The Commission also found that the ballot complied with the applicable industrial instrument, as it was conducted in accordance with the provisions of the instrument. The Commission noted that the ballot was not in accordance with the Union's own internal rules, but this did not affect the validity of the ballot under the industrial instrument. The Commission concluded that the Union had the right to organise the ballot and that USG Boral was required to facilitate the ballot. The Commission ordered that the ballot be held in accordance with the directions of the Union.

Construction, Forestry, Mining and Energy Union v USG Boral Building Products 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