Construction, Forestry, Maritime, Mining and Energy Union v Opal Packaging Australia Pty Ltd T/A Opal Functional Coatings

[2022] FWC 2992

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

Opal Packaging Australia Pty Ltd T/A Opal Functional Coatings

(B2022/1697)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 NOVEMBER 2022

Proposed protected action ballot of employees of Opal Packaging Australia Pty Ltd T/A Opal Functional Coatings.

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 Opal Packaging Australia Pty Ltd T/A Opal Functional Coatings. (Respondent).

On 10 November 2022, my Associate was advised that the Respondent 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 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.

An order has been separately issued in PR747831.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Maritime, Mining and Energy Union applied to the Fair Work Commission for an order allowing a protected action ballot for its members employed by Opal Packaging Australia Pty Ltd T/A Opal Functional Coatings. The application was made under section 437 of the Fair Work Act 2009, which allows for a ballot when negotiations for an enterprise agreement have been unsuccessful. The Opal Packaging Australia Pty Ltd did not object to the application, leading to the decision being made on the papers without a hearing.

The primary legal issue was whether the union had met the requirements to hold a protected action ballot. This included demonstrating that there was a notification time in relation to the proposed agreement and that the union had been genuinely trying to reach agreement with the employer. The union's declaration, which detailed the bargaining process and its efforts to reach an agreement, was central to the determination of this issue.

The Deputy President was satisfied that the union had met the statutory requirements for a protected action ballot. The declaration provided sufficient evidence of the union's attempts to negotiate with the employer and the existence of a notification time. Consequently, the Deputy President issued an order allowing the ballot to proceed. This decision was made without the need for a hearing due to the respondent's lack of objection and the completeness of the documentation submitted by the union.

In summary, the Fair Work Commission granted the union's application for a protected action ballot, finding that the union had satisfied the legal criteria for such an order. The decision reflects the Commission's consideration of the union's efforts to negotiate and the procedural steps taken in accordance with the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established