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
(B2020/657)

DEPUTY PRESIDENT DEAN

SYDNEY, 27 OCTOBER 2020

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

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

[2] On 27 October 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Garry Roger of the CEPU declared on 21 October 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[5] An Order has been separately issued in PR723987.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) sought to conduct a protected action ballot of employees of Orora Packaging Australia Pty Ltd (Orora). The Union intended to ballot employees of Orora to ascertain their views on industrial action. Orora, however, opposed the ballot on the basis that the Union did not have sufficient membership to be able to conduct such a ballot under the Fair Work Act 2009 (Cth). The Federal Circuit and Family Court of Australia was required to determine whether the Union was eligible to conduct a ballot under the Fair Work Act.

The court noted that to conduct a protected action ballot, a union must satisfy certain conditions, including that it has been registered and has sufficient members to constitute a majority of the relevant employees. The Union argued that it satisfied these conditions, however Orora submitted that the Union did not have sufficient members to be able to conduct a ballot. The court found that there was insufficient evidence to determine the number of employees of Orora who were members of the Union, and that the Union did not satisfy the requirements of the Fair Work Act to conduct a ballot. The court noted that the Union was not registered and that there was no evidence that it had a sufficient number of members to be able to conduct a ballot.

The court ordered that the Union was not eligible to conduct a ballot of employees of Orora. The court also ordered that the Union pay Orora's costs of the proceeding. The Union was given leave to appeal the decision.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established