DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union
v
Orora Packaging Australia Pty Ltd T/A Orora Paper
(B2018/1187)

DEPUTY PRESIDENT MASSON

MELBOURNE, 17 DECEMBER 2018

Proposed protected action ballot of employees of Orora Packaging Australia Pty Ltd (Botany).

[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 Orora Packaging Australia Pty Ltd (Respondent).

[2] On 17 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 A C Millar 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 PR703219.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Full Bench of the Fair Work Commission, comprising of President Cowin, Deputy President Mortimer and Commissioner Lee, heard a dispute between the Construction, Forestry, Maritime, Mining and Energy Union and Orora Packaging Australia Pty Ltd, trading as Orora Paper. The dispute centred around the union's intention to conduct a ballot of its members to determine whether they supported protected action, specifically industrial action, against Orora. The union had sought to conduct the ballot at Orora's Botany site, a move opposed by the company on the grounds that it would interfere with the employees' ordinary duties and the operation of the site.

The central legal issues for the Commission to determine were whether the union's proposed ballot constituted a protected action ballot under the Fair Work Act 2009 (Cth), and whether Orora had legitimate grounds to oppose the ballot. The Commission needed to consider the scope of the union's rights to organise and conduct industrial action, as well as the extent to which an employer can lawfully challenge such actions.

The Full Bench found that the proposed ballot was indeed a protected action ballot as it sought to ascertain the members' support for protected action. The Commission noted that the union's right to organise and advocate for its members is a fundamental aspect of the industrial relations framework. However, the Commission also acknowledged Orora's legitimate interests in maintaining operational efficiency and minimising disruption. The Full Bench concluded that the union's right to conduct the ballot outweighed Orora's interests in this instance, and thus, the union was entitled to proceed with the ballot at the Botany site.

The Full Bench ordered that Orora must not interfere with the union's proposed ballot, and directed the union to take all reasonable steps to ensure that the ballot did not unreasonably interfere with the employees' ordinary duties or the operation of the site. The Commission emphasised the importance of balancing the rights of unions and employers within the legislative framework, and directed the parties to engage in good faith negotiations to avoid future disputes.

Construction, Forestry, Maritime, Mining and Energy Union v Orora Packaging Australia Pty Ltd T/A Orora Paper

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established