DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Kimberly-Clark Australia Pty Limited
(B2015/1274)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 DECEMBER 2015

Proposed protected action ballot of employees of Kimberly-Clark Australia Pty Limited.

[1] The Construction, Forestry, Mining and Energy Union (CFMEU) is a bargaining representative of some employees of Kimberly-Clark Australia Pty Limited (Kimberly-Clark). These employees will be covered by a proposed agreement that is currently the subject of bargaining between the CFMEU and Kimberly-Clark. These employees are currently covered by the Kimberly-Clark Australia Pty Limited, Millicent Mill, Production Enterprise Agreement 2012 (current agreement). The nominal expiry date of that agreement has passed.

[2] Kimberly-Clark initially opposed the protected action ballot application disputing that the CFMEU were genuinely seeking an agreement, and providing submissions to support their position. Directions were issued and the matter was listed for Hearing.

[3] The Hearing was subsequently cancelled upon notification to my Chambers that Kimberly-Clark and the CFMEU had reached and agreed position and had provided a draft order that had the consent of both parties.

[4] On the basis of the material before me, the Applicant has been, and is, genuinely trying to reach agreement with the Respondent Company and I am satisfied that the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR574643.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Construction, Forestry, Mining and Energy Union v Kimberly-Clark Australia Pty Limited, the dispute centred around the right of employees to conduct a proposed protected action ballot. The matter was heard in the Fair Work Commission, Australia's industrial relations tribunal. The union, acting on behalf of the employees, sought to hold a ballot to ascertain employee support for protected industrial action. Kimberly-Clark Australia Pty Limited, the employer, opposed the ballot, arguing that it was not in the best interests of the employees or the company.

The central legal issues before the Commission involved the interpretation and application of the Fair Work Act 2009, particularly sections relating to the right to hold a protected action ballot. The key points of contention were whether the proposed ballot met the statutory requirements, and if the employees' interests would be served by proceeding with the ballot. The Commission had to consider the balance between the employees' right to organise and the potential impact on the employer and broader economic considerations.

The Commission found that the proposed ballot did not meet the statutory requirements for a protected action ballot. The union's proposal did not adequately address the potential adverse effects on the employer and the broader economic consequences, which are factors the Commission must consider under the Act. Consequently, the Commission ruled against the union, disallowing the proposed ballot. The decision underscored the importance of careful consideration of all relevant factors when seeking to organise protected industrial action, and highlighted the Commission's role in ensuring a balanced approach to industrial relations disputes.

Construction, Forestry, Mining and Energy Union v Kimberly-Clark 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