Application by Construction, Forestry, Mining and Energy Union

[2016] FWC 694
DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order
Construction, Forestry, Mining and Energy Union
v
Encore Tissue (Aust) Pty Ltd
(B2016/245)

DEPUTY PRESIDENT GOSTENCNIK PERTH, 2 FEBRUARY 2016
Proposed protected action ballot of employees of Encore Tissue (Aust) Pty Ltd.
[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 Encore Tissue (Aust) Pty Ltd (the Respondent).
[2] On 1 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 A

Millar 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 PR576649.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union (CFME) applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Encore Tissue (Aust) Pty Ltd. The CFME sought to conduct a ballot to allow its members to vote on potential industrial action. The application was made without objection from Encore Tissue. The Deputy President, Gostencnik, decided to determine the matter on the papers without a hearing, based on the information provided by the CFME and the lack of objection from the respondent.

The key legal issues for the Deputy President to consider were whether the CFME had fulfilled the requirements under section 443(1) of the Fair Work Act. Specifically, the Deputy President needed to determine if the CFME had genuinely tried to reach an agreement with Encore Tissue and had taken necessary steps in good faith to negotiate. The application included a statutory declaration from Mr. A Millar of the CFME, which outlined the union's efforts in bargaining and negotiations with Encore Tissue.

After reviewing the material, the Deputy President concluded that the CFME had met the requirements under section 443(1) of the Fair Work Act. The union provided sufficient evidence to demonstrate that it had genuinely attempted to reach an agreement with Encore Tissue and had taken appropriate steps in good faith to negotiate. Consequently, the Deputy President decided to grant the CFME's application for a protected action ballot order.

The final orders were issued separately in PR576649, allowing the CFME to proceed with the ballot for its members to vote on potential industrial action against Encore Tissue. The Deputy President's decision was based on the satisfactory evidence provided by the CFME and the absence of any objection from Encore Tissue regarding the application.

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
Encore Tissue (Aust) Pty Ltd
(B2016/245)
DEPUTY PRESIDENT GOSTENCNIK	PERTH, 2 FEBRUARY 2016