DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Australian Paper Pty Ltd
(B2016/95)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 MAY 2016

Proposed protected action ballot of employees who are currently covered by the Australian Paper Agreement 2012-2015.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Australian Paper Pty Ltd (the Respondent).

[2] On 18 May 2016 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 Millar of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR580493.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought to conduct a ballot of employees for protected action, which would involve a stoppage in work. The employees in question were currently covered by the Australian Paper Agreement 2012-2015. Australian Paper Pty Ltd opposed the ballot, arguing that the employees were not eligible to participate as they were covered by the existing agreement. The Commission was tasked with determining the eligibility of these employees to participate in the ballot for protected action.

The primary legal issue before the Commission was whether the employees, who were currently covered by the Australian Paper Agreement 2012-2015, were eligible to participate in a ballot for protected action. The dispute hinged on the interpretation of the relevant provisions of the Fair Work Act 2009 and the specific terms of the existing enterprise agreement. The Commission had to assess whether the employees' employment conditions and the terms of the agreement precluded their participation in the ballot.

The Commission examined the Fair Work Act and the Australian Paper Agreement 2012-2015 to determine the rights and obligations of the employees and the employer. It found that the terms of the existing agreement did not explicitly preclude the employees from participating in the ballot for protected action. Consequently, the Commission ruled that the employees were eligible to participate in the ballot. The decision underscored the importance of interpreting enterprise agreements in the context of the broader legislative framework to ensure that employees' rights to engage in protected action are not unduly restricted.

The Fair Work Commission ordered that the employees, who were currently covered by the Australian Paper Agreement 2012-2015, were eligible to participate in the proposed ballot for protected action. This decision reinforced the principle that employees' rights to engage in protected action must be upheld, provided they are not explicitly restricted by the terms of their existing enterprise agreement.

Construction, Forestry, Mining and Energy Union v Australian Paper 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