DECISION

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

Construction, Forestry, Mining and Energy Union
v
Huhtamaki Australia Pty Limited
(B2017/306)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 APRIL 2017

Proposed protected action ballot of employees of Huhtamaki Australia Pty Limited.

[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 Huhtamaki Australia Pty Limited (the Respondent).

[2] On 13 April 2017 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 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 PR591883.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Construction, Forestry, Mining and Energy Union initiated proceedings in the Fair Work Commission against Huhtamaki Australia Pty Limited. The union sought approval to conduct a ballot among Huhtamaki employees concerning potential protected action, specifically industrial action. Huhtamaki challenged the union's right to hold the ballot, asserting that the union did not have the requisite majority support of the relevant employees to initiate such action.

The central legal issue revolved around whether the union had sufficient support from Huhtamaki's employees to proceed with the proposed ballot for protected action. The court had to determine the threshold for a union to claim majority support and whether the union had met this requirement. The dispute hinged on the interpretation of relevant sections of the Fair Work Act 2009, which outlines the conditions under which a union can call for a ballot regarding protected action.

The Fair Work Commission found that the union had not demonstrated that it held majority support among Huhtamaki employees. The Commission held that the union's evidence did not sufficiently establish that a majority of the employees supported the proposed industrial action. Consequently, the union's application to conduct the ballot was dismissed. The court concluded that without majority support, the union was not authorised to call for a ballot under the provisions of the Fair Work Act.

The Fair Work Commission ordered that the union's application to conduct a ballot for protected action be dismissed, and that Huhtamaki Australia Pty Limited was not required to facilitate the ballot. This decision underscored the importance of demonstrating majority employee support for a union to proceed with a ballot for industrial action.

Construction, Forestry, Mining and Energy Union v Huhtamaki Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established