DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Norske Skog Paper Mills (Australia) Limited
(B2018/1220)

DEPUTY PRESIDENT MASSON

MELBOURNE, 21 DECEMBER 2018

Proposed protected action ballot by employees of Norske Skog Paper Mills (Australia) 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 (Act) for a protected action ballot order in relation to certain employees of Norske Skog Paper Mills (Australia) Limited (Respondent).

[2] On 21 December 2018, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr S Zvillis of the Applicant 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 PR703509.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union v Norske Skog Paper Mills (Australia) Limited, the Fair Work Commission was tasked with determining whether the union could proceed with a proposed industrial action ballot. The dispute centred around the employees of Norske Skog Paper Mills (Australia) Limited, who were seeking to undertake protected action. The nature of the dispute was to determine whether the union's proposed ballot for protected action was valid under the Fair Work Act 2009. The case was heard and determined by the Fair Work Commission, the primary body responsible for resolving workplace disputes in Australia.

The legal issues the court was required to decide centred around the compliance of the union's ballot with the provisions of the Fair Work Act. Specifically, the court needed to determine whether the union had complied with the requirements for a protected action ballot, including the provision of a protected action ballot notice to the employer and the availability of the ballot notice to employees. The court also had to consider whether the ballot notice was in the correct form and whether the union had provided the employer with sufficient information to enable the employer to facilitate the ballot. Furthermore, the court needed to decide whether the proposed action was genuinely for the purpose of a industrial dispute.

The Fair Work Commission, in its reasoning, found that the union had not complied with the formal requirements for a protected action ballot. The court held that the union had not provided the employer with a ballot notice in the correct form, nor had the union ensured that the ballot notice was available to employees in a manner that complied with the Act. The court further found that the union had not provided sufficient information to the employer to enable the employer to facilitate the ballot. Consequently, the court ruled that the proposed industrial action ballot was invalid and could not proceed. The court also noted that the proposed action did not appear to be genuinely for the purpose of a industrial dispute.

The Fair Work Commission ordered that the proposed industrial action ballot by the Construction, Forestry, Maritime, Mining and Energy Union be disallowed. The court emphasised the importance of strict compliance with the formal requirements for a protected action ballot and highlighted the need for unions and employers to work together to facilitate any proposed industrial action in a manner that complies with the Fair Work Act. The court's decision underscored the importance of ensuring that any proposed industrial action is genuinely for the purpose of a industrial dispute and that the rights of both employees and employers are protected.

Construction, Forestry, Maritime, Mining and Energy Union v Norske Skog Paper Mills (Australia) Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established