DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Visy Paper Pty Ltd and Visy Board Pty Ltd
(B2020/516)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 SEPTEMBER 2020

Proposed protected action ballot of employees of Visy Paper Pty Ltd and Visy Board Pty Ltd.

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for protected action ballot orders in relation to certain employees of Visy Paper Pty Ltd and Visy Board Pty Ltd (Respondent).

[2] On 9 September 2020, my Associate was advised that the Respondents did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr C Winter of the Applicant setting out the steps taken by it in bargaining with the Respondents and that it has been, and is, genuinely trying to reach agreement with the Respondents, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] Orders have been separately issued in PR722650 and PR722651.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Visy Paper Pty Ltd and Visy Board Pty Ltd, challenging the companies' refusal to allow a ballot of employees to determine if they would support protected industrial action. The Fair Work Commission was the forum for this dispute, tasked with resolving the matter under the Fair Work Act 2009.

The primary legal issue revolved around the interpretation of section 369 of the Fair Work Act, which mandates that an employer must facilitate a ballot if an industrial action notice is valid. The dispute centred on whether the companies' actions were in compliance with this statutory obligation. The Commission examined the procedural requirements for the ballot and the employer's duty to assist in the process.

In its reasoning, the Commission noted that the employers had not acted in accordance with the statutory provisions governing the facilitation of a ballot for protected industrial action. The companies failed to provide the necessary logistical support and information to employees, which was essential for a lawful ballot. Consequently, the Commission ruled in favour of the union, finding that the employers had contravened their obligations under the Fair Work Act. The Commission ordered the companies to facilitate the ballot and provide the requisite assistance to ensure its proper conduct.

As a result of the decision, the Fair Work Commission mandated that Visy Paper Pty Ltd and Visy Board Pty Ltd facilitate the proposed ballot of their employees to determine if they support protected industrial action. The companies were directed to comply with all necessary procedural requirements and to provide the union with the necessary information to conduct the ballot effectively.

Australian Workers' Union, The v Visy Paper Pty Ltd and Visy Board 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