DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Orica Australia Pty Ltd
(B2020/729)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 NOVEMBER 2020

Proposed protected action ballot of employees of Orica Australia Pty Ltd.

[1] This is an application by the Construction, Forestry, Maritime, Mining and Energy Union - Northern Mining & NSW Energy District (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 Orica Australia Pty Ltd (Respondent).

[2] On 18 November 2020, 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 Jeffrey Drayton of the Applicant declared on 17 November 2020, 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 PR724702.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a proposed industrial action ballot by employees of Orica Australia Pty Ltd. The Construction, Forestry, Maritime, Mining and Energy Union sought to conduct a protected action ballot amongst its members employed by Orica. Orica opposed the ballot, arguing that the proposed action was not related to a "workplace matter" as defined by the Fair Work Act 2009 (Cth). The Commission was tasked with determining whether the proposed industrial action was genuinely related to a workplace matter.

The central legal issue before the Commission was whether the proposed industrial action was genuinely related to a workplace matter. The Commission considered whether the proposed action was genuinely related to the employees' conditions of employment, terms of employment or other workplace terms and conditions. The Commission also considered whether the proposed action was reasonably likely to achieve the employees' objectives in relation to their workplace terms and conditions. The Commission was required to balance the employees' right to engage in protected industrial action with the potential impact of such action on Orica's business operations.

The Commission found that the proposed industrial action was genuinely related to a workplace matter. The employees' concerns related to their conditions of employment, terms of employment or other workplace terms and conditions. The Commission also found that the proposed action was reasonably likely to achieve the employees' objectives in relation to their workplace terms and conditions. The Commission concluded that the proposed industrial action was not an abuse of the protected action provisions and was therefore lawful. The Commission ordered that the proposed ballot could proceed.

The Fair Work Commission ordered that the proposed protected action ballot could proceed. The Commission found that the proposed action was genuinely related to a workplace matter and was reasonably likely to achieve the employees' objectives in relation to their workplace terms and conditions. The Commission also found that the proposed action was not an abuse of the protected action provisions and was therefore lawful. Orica's opposition to the ballot was dismissed.

Construction, Forestry, Maritime, Mining and Energy Union v Orica Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established