Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nyrstar Hobart Pty Ltd T/A Nyrstar Summary

[2022] FWC 2760

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

Nyrstar Hobart Pty Ltd T/A Nyrstar

(B2022/1555)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 OCTOBER 2022

Proposed protected action ballot of employees of Nyrstar Hobart Pty Ltd T/A Nyrstar.

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 Nyrstar Hobart Smelter Pty Ltd T/A Nyrstar (Respondent).

On 14 October 2022, 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 Mr Lee Archer 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 PR746838.

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 an order for a protected action ballot concerning employees of Nyrstar Hobart Pty Ltd, trading as Nyrstar. The matter was considered under section 437 of the Fair Work Act 2009. The union alleged that it had been genuinely attempting to negotiate with the respondent, Nyrstar Hobart, and that a notification period for the proposed agreement had been met. The application was made without objection from Nyrstar, leading the Deputy President to determine the matter on the papers without a hearing.

The central legal issues before the court were whether the union had fulfilled the necessary conditions for a protected action ballot under section 437 of the Fair Work Act 2009 and whether the union had genuinely attempted to reach an agreement with Nyrstar. The court needed to assess the union's declaration and the steps it had taken to ensure compliance with section 443(1) of the Act, which pertains to the notification time for protected action.

The Deputy President concluded that the union had indeed met the statutory requirements for a protected action ballot. The union's declaration, which outlined the bargaining steps and the genuine efforts to reach an agreement, was found to be sufficient. Consequently, the court was satisfied that a notification period had been correctly observed, and the union's application was approved. An order was subsequently issued in PR746838, permitting the union to proceed with the ballot.

In summary, the Fair Work Commission granted the union's application for a protected action ballot, confirming that the union had adhered to the statutory requirements and genuinely attempted to negotiate with Nyrstar. The decision was based on the material provided and the absence of objections from Nyrstar. The court's order, issued in PR746838, authorised the union to conduct the ballot as proposed.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Nyrstar Hobart Pty Ltd T/A Nyrstar

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established