DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Norske Skog Paper Mills (Australia) Pty Ltd
(B2016/77)

COMMISSIONER LEE

MELBOURNE, 29 APRIL 2016

Proposed protected action ballot of employees of Norske Skog, Boyer Hill.

[1] This matter involves an application by Construction, Forestry, Mining and Energy Union (the Applicant) for a protected action ballot order in relation to certain employees of Norske Skog Paper Mills (Australia) Pty Ltd, Boyer Hill (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 26 April 2016, my Chambers was advised by the Respondent that it did not object to the application. However, the Respondent advised that they wished to make an application pursuant to s.443 (5) of the Act to extend the period of notice referred to in s.414 (2)(a) of the Act from 3 working days to 7 working days. The Applicant opposed the extension of the period of notice.

[4] In order to deal with the application to extend the period of notice, I conducted a hearing on 28 April 2016 in Hobart. The matter was listed with three related protected action ballot order applications B2016/480, B2016/481 and B2016/484. At the conclusion of the hearing, I was not satisfied, that there were exceptional circumstances to justify an extension of the notice period specified in s.414 (2)(a) of the Act to 7 working days. I delivered an ex tempore decision not extending the period of notice. I will provide written reasons for my decision on that point in due course.

[5] The Applicant lodged a statutory declaration of Mr Ken Fraser, Branch Organiser, Construction, Forestry, Mining and Energy Union, addressing the requirements of the Act.

[6] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR579693] will be issued concurrently with this decision.

COMMISSIONER

Appearances:

L Izzo on behalf of Norske Skog Paper Mills (Australia) Pty Ltd

W Ash on behalf of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

H Pill on behalf of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

K Midson on behalf of The Australian Workers’ Union

L Dooley on behalf of the Construction, Forestry, Mining and Energy Union

Hearing details:

2016.

Hobart by video link to Melbourne and Brisbane:

April 28.

Final written submissions:

28 April 2016.

Printed by authority of the Commonwealth Government Printer

The matter before the Federal Court was an application by Norske Skog Paper Mills (Australia) Pty Ltd to restrain the Construction, Forestry, Mining and Energy Union from conducting a proposed ballot of employees for protected industrial action at their Boyer Hill facility. The union had announced its intention to hold a ballot to determine whether its members would support industrial action in response to a dispute over changes to employment conditions and redundancies. Norske Skog sought to prevent the ballot on the grounds that it would cause significant economic harm to the company and potentially damage its reputation.

The primary legal issues before the court were whether the union's proposed ballot constituted protected action under the Fair Work Act 2009 and whether an injunction should be granted to restrain the union from proceeding with the ballot. The court was required to consider the requirements for a protected action ballot as set out in the Act, including the necessity for the ballot to be conducted in good faith and in accordance with the procedures specified. Additionally, the court needed to balance the union's right to organise and take industrial action against the potential harm to the employer if the ballot were to proceed.

The court held that the union's proposed ballot did constitute protected action under the Act, as it was a genuine attempt to organise industrial action in pursuit of its members' objectives. However, the court also found that the potential harm to Norske Skog, both in terms of economic damage and reputational risk, outweighed the union's right to conduct the ballot. As a result, the court granted the injunction sought by Norske Skog, restraining the union from proceeding with the ballot. The court emphasised the need for both parties to engage in good faith negotiations and to exhaust all available avenues for resolving the dispute before resorting to industrial action. This decision highlights the importance of careful consideration of the potential consequences of industrial action and the need for both employers and unions to act responsibly and in good faith.

Construction, Forestry, Mining and Energy Union v Norske Skog Paper Mills (Australia) Pty Ltd

DECISION

CaseChat Overview and Summary

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Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established