Application by Construction, Forestry, Mining and Energy Union Summary

[2016] FWC 880
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
(B2016/257)

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 PR576900.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (the Applicant) applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order regarding certain employees of Carter Holt Harvey Woodproducts Australia Pty Ltd (the Respondent). The application was made to facilitate a ballot of the employees to determine if they supported protected industrial action. The Respondent did not object to the application, and the matter was determined on the papers without a hearing.

The primary legal issue for the Deputy President to decide was whether the Applicant had met the requirements under section 443(1) of the Act, which mandates that the union must have been genuinely attempting to reach an agreement with the employer before applying for a protected action ballot order. The Deputy President had to assess the evidence provided by the Applicant, including the statutory declaration of Mr. B. Coates, to determine if the union had genuinely tried to reach an agreement with the Respondent.

Upon reviewing the material before him, the Deputy President concluded that the Applicant had satisfied the requirements of section 443(1) of the Act. The Deputy President was persuaded by the evidence of the Applicant’s efforts in bargaining with the Respondent and their genuine attempt to reach an agreement. Consequently, the Deputy President decided in favor of the Applicant, granting the protected action ballot order. An order was separately issued in PR576900.

Application by Construction, Forestry, Mining and Energy Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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
(B2016/257)
DEPUTY PRESIDENT GOSTENCNIK	MELBOURNE, 9 FEBRUARY 2016