Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Summary

[2022] FWC 2630

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v

Orora Packaging Australia Pty Ltd
(B2022/1468)

VICE PRESIDENT CATANZARITI

SYDNEY, 29 SEPTEMBER 2022

Proposed protected action ballot of employees of Orora Packaging Australia Pty Ltd

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Orora Packaging Australia Pty Ltd (Respondent).

On 28 September 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Scott Reichman of the Applicant declared on 28 September 2022, 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.

An Order has been separately issued in PR746344.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) under section 437 of the Fair Work Act 2009. The Union sought a protected action ballot order concerning employees of Orora Packaging Australia Pty Ltd. The dispute centred around the Union's proposal to hold a ballot for potential protected industrial action, which needed authorisation under the Act. Orora Packaging Australia Pty Ltd did not oppose the Union's application, which led the Vice President of the Commission to decide the matter on the submitted documentation without the need for a hearing.

The central legal issues before the Commission involved whether the Union had genuinely attempted to negotiate with Orora Packaging Australia Pty Ltd and whether the statutory requirements for a protected action ballot were satisfied. Specifically, the Union needed to demonstrate that it had undertaken bargaining with the employer and that it was genuinely attempting to reach an agreement. Furthermore, the Union had to provide evidence that the statutory notification period had been met as per section 443(1) of the Act.

In determining the application, the Vice President considered the material submitted, including the statutory declaration of Scott Reichman from the Union, which detailed the bargaining efforts and the Union's ongoing attempts to reach an agreement with Orora Packaging Australia Pty Ltd. The Vice President was satisfied that the Union had met the notification time requirement and that all necessary statutory conditions under section 443(1) of the Act had been fulfilled. Consequently, the Vice President issued an order in accordance with the Union's application.

This decision authorised the Union to proceed with the ballot for the proposed protected action, allowing the employees to vote on the proposed industrial action. The order was issued separately under PR746344, ensuring that all procedural requirements under the Fair Work Act 2009 were complied with.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established