Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Essity Holding Australia Pty Ltd

[2023] FWC 775

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

Essity Holding Australia Pty Ltd

(B2023/300)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 MARCH 2023

Proposed protected action ballot of employees of Essity Holding 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 (Act) for a protected action ballot order in relation to certain employees of Essity Holding Australia Pty Ltd (Respondent).

On 30 March 2023, my Associate was advised that the Respondent did not object to 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 declaration of Ms Chelsea Hill 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.

An order has been separately issued in PR760757.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking a protected action ballot order against Essity Holding Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The union intended to conduct a ballot of its members, who were employees of Essity, to determine if they wished to take protected action in pursuit of a bargaining objective. The union argued that it had been genuinely attempting to reach an agreement with Essity but had been unsuccessful, and thus needed to proceed with the ballot to potentially authorise industrial action.

The primary legal issue before the Deputy President was whether the union had met the statutory requirements to hold a protected action ballot. The union needed to demonstrate that it had genuinely attempted to negotiate an agreement with Essity, that a notification time had elapsed, and that all other relevant conditions under the Fair Work Act had been satisfied. Given that Essity did not object to the application, the Deputy President focused on whether the union had provided sufficient evidence of good faith negotiations and met the other criteria for a ballot under the Act.

Upon reviewing the materials provided, including a declaration by Ms Chelsea Hill of the union outlining the bargaining process and efforts made to reach an agreement, the Deputy President determined that the union had indeed met the requirements for a protected action ballot. The union had shown that it had been genuinely trying to reach an agreement with Essity, and the necessary notification period had passed. Consequently, the Deputy President concluded that the union was entitled to proceed with the ballot as requested.

The Deputy President issued an order in PR760757, allowing the union to conduct the ballot of its members. This decision ensures that the union can proceed with its proposed industrial action if the majority of its members vote in favour, following the legally prescribed process. The order reflects the Commission’s role in facilitating fair bargaining practices and resolving disputes under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established