Construction, Forestry and Maritime Employees Union v Opal Packaging Australia Pty Ltd

[2023] FWC 3435

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Opal Packaging Australia Pty Ltd

(B2023/1401)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 21 DECEMBER 2023

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

This is an application by the Construction, Forestry, Mining and Energy Union (CFMEU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Opal Packaging Australia Pty Ltd (Opal or Employer).

On 21 December 2023, the Commission was advised that Opal, in effect, 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 Denise Campbell-Burns on behalf of the CFMEU, setting out the steps taken by the CFMEU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Opal, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission. For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 7 February 2023.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An order has been separately issued in PR769701.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] This is, in effect, 30 working days from the making of the Order, as sought in the application. It is also the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Construction, Forestry, Mining and Energy Union (CFMEU) for a protected action ballot order concerning employees of Opal Packaging Australia Pty Ltd. Opal did not object to the application, and the matter was decided on the papers. The CFMEU sought the ballot order to resolve ongoing negotiations with Opal over a proposed enterprise agreement. The Deputy President was satisfied that the CFMEU had genuinely attempted to reach an agreement and that the statutory requirements for a protected action ballot were met.

The legal issues before the Deputy President involved determining whether the CFMEU had met the prerequisites for a protected action ballot under section 437 of the Fair Work Act 2009. The primary question was whether the union had taken sufficient steps to negotiate in good faith with Opal and if the necessary notification period for the ballot had been provided. The Deputy President also needed to set a closing date for the ballot, ensuring it aligned with the Australian Electoral Commission's requirements.

The Deputy President concluded that the CFMEU had indeed taken adequate steps in good faith and that all statutory requirements were fulfilled. The Commission determined that the voting period for the ballot would close on 7 February 2023, which also set the ballot period under section 448A(2) of the Act. An order was issued to conduct a compulsory conciliation conference, with Directions to ensure that the parties were prepared for meaningful negotiations. Another Member of the Commission would oversee this conference.

The orders issued include a protected action ballot order and a compulsory conciliation conference order, with specific dates set for the ballot's closing and the conference's commencement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established