Application by Australian Workers' Union, the

[2016] FWC 2699

[2016] FWC 2699

DECISION

Fair Work Act 2009
s.437—Protected action
Australian Workers’ Union, The
v
Norske Skog Paper Mills (Australia) Pty Ltd
(B2016/480)
COMMISSIONER LEE	MELBOURNE, 29 APRIL 2016

Proposed protected action ballot of employees of Norske Skog, Boyer Hill.

[1]        This matter involves an application by The Australian Workers’ Union (the Applicant)

for a protected action ballot order in relation to certain employees of Norske Skog Paper Mills

(Australia) Pty Ltd, Boyer Hill (the Respondent), pursuant to section 437 of the Fair Work

Act 2009 (the Act).

[2]        Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed

enterprise agreement if:

(a)	an application has been made under section 437; and
(b)	the FWC is satisfied that each applicant has been, and is, genuinely

trying to reach an agreement with the employer of the employees who are to be

balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed

enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted,

including the nature of the proposed industrial action.

[2016] FWC 2699

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will

enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is

to be the protected action ballot agent for the protected action ballot, the protected

action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the

protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be

the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the

subject of the protected action ballot, that there are exceptional circumstances

justifying the period of written notice referred to in paragraph 414(2)(a) being longer

than 3 working days, the protected action ballot order may specify a longer period of

up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for

a proposed enterprise agreement, a bargaining representative of an employee who will

be covered by the agreement must give written notice of the action to the employer of

the employee.”

[3]        On 26 April 2016, my Chambers was advised by the Respondent that it did not object

to the application. However, the Respondent advised that they wished to make an application

pursuant to s.443 (5) of the Act to extend the period of notice referred to in s.414 (2)(a) of the

Act from 3 working days to 7 working days. The Applicant opposed the extension of the

period of notice.

[4]        In order to deal with the application to extend the period of notice, I conducted a

hearing on 28 April 2016 in Hobart. The matter was listed with three related protected action

ballot order applications B2016/77, B2016/481 and B2016/484. At the conclusion of the

hearing, I was not satisfied, that there were exceptional circumstances to justify an extension

of the notice period specified in s.414 (2)(a) of the Act to 7 working days. I delivered an ex

tempore decision not extending the period of notice. I will provide written reasons for my

decision on that point in due course.

[5]        The Applicant lodged a statutory declaration of Mr Kevin Richard Midson, Organiser,

The Australian Workers’ Union, addressing the requirements of the Act.

[6]        In particular, I note I am satisfied that the requirements of section 443 of the Act have

been met, that the Applicant has been and is genuinely trying to reach an agreement with the

Respondent and that the draft order meets the requirements of section 443(3) of the Act. The

Australian Electoral Commission is to be the protected action ballot agent.

[2016] FWC 2699

[7]        As I am satisfied that the requirements of the Act have been met, pursuant to section

443 of the Act, the Order must be made. The Order [PR579704] will be issued concurrently

with this decision.

COMMISSIONER

Appearances:

L Izzo on behalf of Norske Skog Paper Mills (Australia) Pty Ltd

W Ash on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal,

Plumbing and Allied Services Union of Australia

H Pill on behalf of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries

Union” known as the Australian Manufacturing Workers’ Union (AMWU)

K Midson on behalf of The Australian Workers’ Union

L Dooley on behalf of the Construction, Forestry, Mining and Energy Union

Hearing details:

2016.

Hobart by video link to Melbourne and Brisbane:

April 28.

Final written submissions:

28 April 2016.

Printed by authority of the Commonwealth Government Printer

<Price code A, PR579703>