Application by Construction, Forestry, Mining and Energy Union

[2016] FWC 881

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Carter Holt Harvey Woodproducts Australia Pty Ltd
(B2016/258)
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 FEBRUARY 2016

Proposed protected action ballot of employees of Carter Holt Harvey Woodproducts

Australia 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 Carter Holt Harvey Woodproducts Australia Pty Ltd

(the Respondent).

[2] On 8 February 2016 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 B

Coates 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 PR576898.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union applied to the Fair Work Commission for a protected action ballot order in relation to employees of Carter Holt Harvey Woodproducts Australia Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The applicant argued that it had been genuinely attempting to reach an agreement with the employer but had been unsuccessful. The employer did not object to the application.

The central legal issue for the Fair Work Commission to determine was whether the union had satisfied the statutory requirements to seek a protected action ballot. This required a consideration of whether the union had genuinely attempted to negotiate with the employer and whether there was an impasse in those negotiations. The Commission had to assess the evidence presented by the union to ascertain if these conditions were met.

The Deputy President concluded that the union had demonstrated that it had genuinely attempted to reach an agreement with the employer and that there was an impasse in negotiations. The Deputy President was satisfied that the statutory requirements had been met based on the material provided, including the statutory declaration of Mr. Coates of the union. Consequently, the application was successful, and an order was issued for a protected action ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established