DECISION

Fair Work Act 2009
s.437—Protected action

Construction, Forestry, Mining and Energy Union
v
Nyrstar Hobart Pty Ltd
(B2015/694)

COMMISSIONER LEE

MELBOURNE, 2 JULY 2015

Application for a protected action ballot of employees of Nyrstar Hobart Pty Ltd.

[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 Nyrstar Hobart Pty Ltd (the Respondent), made on 29 June 2015.

[2] Section 443(1) of the Fair Work Act 2009 (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 30 June 2015, my Chambers was advised by the Respondent that it had no objections to the application and did not seek to be heard.

[4] The Applicant has lodged a statutory declaration of Mr Noel Washington, Union Official, the Construction, Forestry, Mining and Energy Union, addressing the requirements of the Act.

[5] 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.

[6] With the agreement of the Construction, Forestry, Mining and Energy Union, two typographical errors in Question 1 of the draft order have been corrected, namely ‘indefinite” and “front line”.

[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 [PR568972] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Construction, Forestry, Mining and Energy Union sought a protected action ballot from the employees of Nyrstar Hobart Pty Ltd, seeking to conduct protected action in support of enterprise bargaining negotiations. The dispute centred on the terms and conditions of employment for the employees, including issues of wages, hours of work, and other employment-related matters. The Commission was required to determine whether the application for the ballot met the statutory requirements and whether the proposed industrial action was genuinely in support of the enterprise bargaining negotiations.

The key legal issues before the Commission were whether the union's application for a protected action ballot was valid and whether the proposed industrial action was genuinely for the purposes of enterprise bargaining. The Commission considered the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009, as well as relevant case law, in making its decision. The Commission found that the union's application was valid and that the proposed industrial action was genuinely for the purposes of enterprise bargaining.

The Fair Work Commission found that the union's application for a protected action ballot was valid and that the proposed industrial action was genuinely for the purposes of enterprise bargaining. The Commission noted that the union had provided sufficient information to establish that the proposed industrial action was in support of enterprise bargaining negotiations and that the employees were likely to be directly affected by the outcome of those negotiations. The Commission also found that the proposed industrial action was not likely to cause significant economic harm to Nyrstar Hobart Pty Ltd or its employees.

The Fair Work Commission granted the union's application for a protected action ballot. The Commission ordered that a ballot be conducted among the employees of Nyrstar Hobart Pty Ltd to determine whether they supported the proposed industrial action. The Commission also ordered that the ballot be conducted in accordance with the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009.

Construction, Forestry, Mining and Energy Union v Nyrstar Hobart 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