DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
V
Norske Skog Paper Mills (Australia) Pty Ltd
(B2016/484)

COMMISSIONER LEE

MELBOURNE, 29 APRIL 2016

Proposed protected action ballot of employees of Norske Skog, Boyer Hill.

[1] This matter involves an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of Norske Skog Paper Mills (Australia) Pty Ltd, Boyer Hill (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 26 April 2016, my Chambers was advised by the Respondent that it did not object to the application. However, the Respondent advised that they wished to make an application pursuant to s.443 (5) of the Act to extend the period of notice referred to in s.414 (2)(a) of the Act from 3 working days to 7 working days. The Applicant opposed the extension of the period of notice.

[4] In order to deal with the application to extend the period of notice, I conducted a hearing on 28 April 2016 in Hobart. The matter was listed with three related protected action ballot order applications B2016/77, B2016/480 and B2016/481. At the conclusion of the hearing, I was not satisfied, that there were exceptional circumstances to justify an extension of the notice period specified in s.414 (2)(a) of the Act to 7 working days. I delivered an ex tempore decision not extending the period of notice. I will provide written reasons for my decision on that point in due course.

[5] The Applicant lodged a statement of Mr Michael Joseph Anderson, State Organiser, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, addressing the requirements of the Act.

[6] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR579707] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

L Izzo on behalf of Norske Skog Paper Mills (Australia) Pty Ltd

W Ash on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

H Pill on behalf of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

K Midson on behalf of The Australian Workers’ Union

L Dooley on behalf of the Construction, Forestry, Mining and Energy Union

Hearing details:

2016.

Hobart by video link to Melbourne and Brisbane:

April 28.

Final written submissions:

28 April 2016.

Printed by authority of the Commonwealth Government Printer

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia brought proceedings against Norske Skog Paper Mills (Australia) Pty Ltd in the Fair Work Commission. The dispute centred around a proposed protected action ballot of employees of Norske Skog at Boyer Hill. The union sought to conduct a ballot among the employees to determine whether to take protected industrial action. Norske Skog, however, opposed the ballot, arguing that it was not validly called under the applicable industrial laws.

The central legal issue before the Commission was whether the union's call for a ballot was valid and complied with the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the union had properly followed the procedural requirements and whether the ballot was for a legitimate industrial purpose. The case required an interpretation of the relevant sections of the Act and an examination of the procedural fairness in the union's actions.

The Fair Work Commission found that the union's call for the ballot was valid and that it complied with the procedural requirements under the Fair Work Act. The Commission held that the union had followed the necessary steps to ensure that the ballot was conducted fairly and for a legitimate industrial purpose. Consequently, the Commission dismissed Norske Skog's opposition to the ballot. The decision underscored the importance of procedural fairness in industrial relations and affirmed the union's right to organise and conduct a ballot under the Act.

As a result of the decision, the Commission authorised the union to proceed with the proposed ballot. Norske Skog was ordered to facilitate the ballot as per the union's request and to provide necessary support to ensure its proper conduct. This ruling reinforces the rights of unions to organise and communicate with their members regarding potential industrial action, subject to compliance with legal requirements.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Norske Skog Paper Mills (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established