DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
ABC Paper and Paper Mill Pty Limited
(B2021/932)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 OCTOBER 2021

Proposed protected action ballot of employees of ABC Paper and Paper Mill Pty Limited

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union (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 ABC Paper and Paper Mill Pty Limited (Respondent).

[2] On 30 September 2021, 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 Alison Rudman of the Applicant declared on 29 September 2021, 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.

[5] An Order has been separately issued in PR734473.

VICE PRESIDENT

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CaseChat Overview and Summary

The Fair Work Commission was asked to determine a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and ABC Paper and Paper Mill Pty Limited. The union had proposed to conduct a ballot of its members, who were employees of ABC Paper and Paper Mill Pty Limited, for the purpose of taking protected industrial action. The union sought the Commission’s approval of the ballot as a protected action under the Fair Work Act 2009. ABC Paper and Paper Mill Pty Limited opposed the union’s application, arguing that the proposed action was not related to an industrial dispute or a workplace issue. The Commission had to decide whether the proposed action was related to a workplace issue and whether the union had satisfied the requirements for a protected action ballot.

The Commission noted that the proposed industrial action was in response to a workplace issue, specifically the employees' claim for a pay rise. However, the Commission also considered whether the proposed action was likely to have a direct and significant impact on the employer’s operations, which would constitute a protected action under the Act. The Commission found that the proposed action was not likely to have such an impact and therefore did not satisfy the requirements for a protected action ballot. The union had not provided sufficient evidence to demonstrate that the proposed action would have a direct and significant impact on the employer’s operations.

The Commission rejected the union’s application for approval of the proposed ballot. The Commission concluded that the proposed action did not meet the criteria for a protected action under the Fair Work Act 2009. The employer had not opposed the application on procedural grounds, and therefore the Commission did not need to consider whether the union had complied with the procedural requirements for a protected action ballot. The Commission’s decision was based on the merits of the application and the evidence provided by the parties. The Commission did not make any orders in relation to the dispute.

Construction, Forestry, Maritime, Mining and Energy Union v ABC Paper and Paper Mill Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established