Construction, Forestry and Maritime Employees Union v Solaris Paper Pty Ltd T/A Solaris Paper

[2024] FWC 2373

[2024] FWC 2373

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Construction, Forestry and Maritime Employees Union
v

Solaris Paper Pty Ltd T/A Solaris Paper

(B2024/1126)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 3 SEPTEMBER 2024

Proposed protected action ballot of employees of Solaris Paper Pty Ltd T/A Solaris Paper

1. This is an application by the Construction, Forestry and Maritime Employees Union – Manufacturing Division (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 Solaris Paper Pty Ltd T/A Solaris Paper (Solaris or Employer).

1. On 2 September 2024, the Commission was advised that the Employer objected to the Application. The basis of the objection was that it had at all times been committed to bargaining in good faith and that recent bargaining meetings had involved a comprehensive proposed 3-year agreement which had not yet been considered by the CFMEU. Further, in effect, that the application was premature and unnecessary.

1. In the circumstances, I decided to conduct a hearing today in order to determine the application. The CFMEU contended that it had met all of the requirements of the Act for the issuing of the order and that the parties had been bargaining in good faith but remained apart on the terms of the proposed new agreement. In the course of the hearing, Solaris ultimately accepted that it had no basis to oppose the application under the terms of the Act, but sought continuing good faith bargaining.

1. In that light, I determined that the application should be granted, and the Order is being issued in a slightly modified form today. My reasons for so doing are set out hereunder.

1. Section 437 of the Act provides as follows:

437 Application for a protected action ballot order

Who may apply for a protected action ballot order

(1)A bargaining representative of an employee who will be covered by a proposed enterprise agreement, or 2 or more such bargaining representatives (acting jointly), may apply to the FWC for an order (a protected action ballot order) requiring a protected action ballot to be conducted to determine whether employees wish to engage in particular protected industrial action for the agreement.

(2) Subsection (1) does not apply if the proposed enterprise agreement is:

(a)a greenfields agreement; or

(b)a cooperative workplace agreement.

(2A) Subsection (1) does not apply unless there has been a notification time in relation to the proposed enterprise agreement.

Note: For notification time, see subsection 173(2). Protected industrial action cannot be taken until after bargaining has commenced (including where the scope of the proposed enterprise agreement is the only matter in dispute).

Matters to be specified in application

(3) The application must specify:

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

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

(c)the name of the person or entity that the applicant wishes to be the protected action ballot agent for the protected action ballot.

Note:        The protected action ballot agent for the ballot must be an eligible protected action ballot agent unless there are exceptional circumstances: see section 444.

(5) A group of employees specified under paragraph (3)(a) is taken to include only employees who:

(a)will be covered by the proposed enterprise agreement; and

(b)either:

(i)are represented by a bargaining representative who is an applicant for the protected action ballot order; or

(ii)are bargaining representatives for themselves but are members of an employee organisation that is an applicant for the protected action ballot order.

Documents to accompany the application

(6) The application must be accompanied by any documents and other information prescribed by the regulations.

1. Section 443 of the Act provides:

“443 When the FWC must make a protected action ballot order

(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;

(c)the date by which voting in the protected action ballot closes;

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

(e)the person or entity that the FWC decides, under subsection 444(1A), is to be the protected action ballot agent for the protected action ballot;

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

(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.

(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 or 120 hours (whichever is applicable), 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.

1. The CFMEU must demonstrate that it has met (and where relevant continues to meet) all of these requirements. I observe for completeness that there are other statutory requirements for a Protected Action Ballot Order (PABO) to be issued that are not raised in this matter. There is no dispute that the CFMEU was entitled to bring the application and that a valid application has been made under s.437 of the Act.

1. The CFMEU relies upon the declaration of Denise Campbell-Burns, Secretary of the Pulp & Paper Workers District and President of Manufacturing, 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 Solaris. This is not disputed.

1. I would be open to the suggestion that progress in bargaining for a new enterprise agreement in this matter remains possible without recourse to protected industrial action. However, this is not the test for a PABO to be issued and protected industrial action as part of bargaining, provided that the various statutory requirements have been met, is part of the scheme of the Act.

1. I find that the CFMEU has met the requirements of s.443(1)(b) of the Act.

1. On the basis of the material before me, I am also satisfied that there is a notification time[1] in relation to the proposed agreement and that all of the requirements in s.443 of the Act have been met, including those not in contest and not expressly dealt with in this decision. On that basis, and given that s.443(2) does not apply, I was obliged to issue the Order.

1. The ballot is to be conducted by the Australian Electoral Commission.

1. 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 16 October 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

1. An Order has been separately issued in PR778905.

1. 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 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] Required by s.437(2A) of the Act.

[2] This is, in effect, 30 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

<PR778906>