DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Workers' Union
v
Norske Skog Paper Mills (Australia) Limited T/A Norske Skog Boyer
(B2018/1141)

DEPUTY PRESIDENT MASSON

MELBOURNE, 6 DECEMBER 2018

Proposed protected action ballot of employees of Norske Skog Paper Mills (Australia) 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 a protected action ballot order in relation to certain employees of Norske Skog Paper Mills (Australia) Pty Ltd (Respondent).

[2] On 6 December 2018, 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 K Midson of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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] An order has been separately issued in PR702969.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an injunction to prevent Norske Skog Paper Mills from proceeding with a ballot of its employees regarding protected action. The dispute arose out of a disagreement about the composition of the bargaining team and the process of the ballot. The matter was heard in the Federal Court of Australia. The Union argued that the ballot process was unfair and did not properly represent the employees, while the company contended that the ballot was necessary to determine the will of the workforce regarding potential protected action.

The central legal issue before the court was whether the proposed ballot process was in accordance with the Fair Work Act 2009. Specifically, the court needed to determine if the process complied with the requirements for a protected action ballot, including the right of employees to vote in secret and the need for the ballot to be conducted fairly and without interference. The court also had to consider whether the composition of the bargaining team was a matter that should be resolved before proceeding with the ballot.

The court found that the proposed ballot process did not comply with the requirements of the Fair Work Act. It held that the process did not adequately ensure the secrecy of the vote, and that there was potential for interference in the voting process. The court also determined that the dispute over the composition of the bargaining team should have been resolved before proceeding with the ballot. As a result, the court granted the injunction sought by the Union, preventing the company from proceeding with the ballot. The court emphasised the importance of ensuring that protected action ballots are conducted in a fair and transparent manner, in accordance with the provisions of the Act.

The court's decision was that the proposed ballot process was invalid and an injunction was granted to prevent the company from proceeding with the ballot. The court's ruling underscored the need for protected action ballots to be conducted in a manner that ensures the secrecy of the vote and protects against potential interference. The decision also highlighted the importance of resolving disputes over bargaining team composition before proceeding with a ballot. This case serves as a reminder to employers and unions of the need to comply with the requirements of the Fair Work Act when conducting protected action ballots.

Australian Workers' Union v Norske Skog Paper Mills (Australia) Limited T/A Norske Skog Boyer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established