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

[2022] FWC 2667

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

Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging

(B2022/1475)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 OCTOBER 2022

Proposed protected action ballot of employees of Opal 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 Opal Packaging Australia Pty Ltd T/A Opal Fibre Packaging (Respondent).

On 3 October 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 Matthew Murphy 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 PR746474.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) 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 in relation to certain employees of Opal Packaging Australia Pty Ltd, trading as Opal Fibre Packaging. The matter was determined by Vice President Catanzariti on 4 October 2022, without a hearing, due to the respondent's lack of opposition. The Union's application aimed to allow employees to vote on potential protected action, such as strikes or lockouts, in response to the employer's refusal to reach an agreement on certain terms and conditions of employment.

The primary legal issue before the FWC was whether the Union had met the statutory requirements to hold a protected action ballot. This included demonstrating that the Union had genuinely attempted to negotiate with the employer and that a notification period had elapsed. The Union submitted a statutory declaration by Matthew Murphy, outlining the bargaining process and asserting the Union's genuine efforts to reach an agreement. The FWC had to consider whether the Union had fulfilled the conditions set out in section 443(1) of the Act, which pertain to the negotiation process and the timing of the ballot.

The FWC found that the Union had satisfied the necessary conditions for holding a protected action ballot. Based on the statutory declaration and other evidence presented, Vice President Catanzariti was satisfied that the Union had genuinely attempted to negotiate with the employer and that the required notification period had passed. Consequently, the FWC determined to grant the Union's application for a protected action ballot order. This decision allowed the employees to vote on potential protected action, such as strikes or lockouts, to address the unresolved employment issues.

An Order was issued in PR746474, formalising the FWC's decision to allow the protected action ballot. This decision underscores the importance of the negotiation process and the statutory requirements that must be met before employees can resort to protected action 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