DECISION

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

Construction, Forestry, Mining and Energy Union
v
Kimberly-Clark Australia Pty Ltd
(B2018/79)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 7 FEBRUARY 2018

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

[1] This is an application dated 5 February 2018 made by the Construction, Forestry, Mining and Energy Union (CFMEU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Kimberly-Clark Australia Pty Limited (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Alex Millar of the CFMEU dated 5 February 2018, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

1 PR600225

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Construction, Forestry, Mining and Energy Union and Kimberly-Clark Australia Pty Ltd. The union proposed a ballot of its members, who were employees of Kimberly-Clark, to take protected industrial action. The employer objected to the ballot on the basis that the proposed action was not protected action as defined by the Fair Work Act 2009. The Commission was required to determine whether the proposed action qualified as protected action and whether the union had followed the necessary procedures in proposing the ballot.

The legal issues before the Commission centred on the interpretation of the Fair Work Act and the definition of protected action. Specifically, the Commission needed to determine whether the proposed action by the union's members constituted protected action as per the Act, and whether the union had complied with the procedural requirements for a ballot of employees. The employer argued that the proposed action did not qualify as protected action because it was not related to a workplace matter and did not involve a dispute between the employer and the employees.

The Commission found that the proposed action did qualify as protected action, as it involved a dispute between the employer and the employees about a workplace matter. The Commission noted that the dispute was about the employer's implementation of a new rostering system, which the union claimed would result in detrimental changes to the employees' conditions of employment. The Commission also found that the union had complied with the procedural requirements for a ballot of employees. The employer's objection to the ballot was dismissed, and the Commission authorised the union to proceed with the ballot of its members.

The Fair Work Commission authorised the union to conduct a ballot of its members, which involved employees of Kimberly-Clark Australia Pty Ltd. The Commission found that the proposed action by the union's members qualified as protected action under the Fair Work Act and that the union had followed the necessary procedural requirements in proposing the ballot. The employer's objection to the ballot was dismissed.

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