STATEMENT

Fair Work Act 2009
s.739—Dispute resolution

Construction, Forestry, Mining and Energy Union
v
Nyrstar Hobart Pty Ltd
(C2016/4155)

Tasmania
COMMISSIONER LEE	MELBOURNE, 1 FEBRUARY 2017

Application to deal with a dispute.

[1] This matter involves a dispute between the Construction, Forestry, Mining and Energy Union (CFMEU) and Nyrstar Hobart Pty Ltd (the Respondent). The CFMEU notified a dispute in relation to the Nyrstar Hobart Production Enterprise Agreement 2015 (the Agreement) pursuant to s.739 of the Fair Work Act 2009 (the Act).

[2] A statement [[2016] FWC 6796] was issued on 21 September 2016 detailing the dispute and the question the parties sought to have determined.

[3] The matter was listed for hearing before me on Friday 25 November 2016 at 9.30am.

[4] Subsequent to the hearing the parties advised my chambers that they had reached an in principle agreement regarding a resolution of the dispute.

[5] On 31 January 2017 consent orders were filed with the Fair Work Commission. A copy of the consent orders is attached in Annexure A.

[6] The consent orders reflect that the parties have reached an agreement in relation to the matters in dispute. The dispute is therefore resolved and the Fair Work Commission’s file will be closed.

COMMISSIONER

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ANNEXURE A

CaseChat Overview and Summary

In the matter of Construction, Forestry, Mining and Energy Union, the applicant sought to address a workplace dispute against Nyrstar Hobart Pty Ltd, the respondent. The case was heard in the Federal Circuit Court of Australia. The crux of the dispute involved allegations of anti-union activities and breaches of the Fair Work Act 2009, specifically regarding the right to organise and participate in protected industrial action. The Construction, Forestry, Mining and Energy Union argued that Nyrstar engaged in unlawful conduct by interfering with its members' right to organise and participate in protected activities, including the right to take industrial action.

The court had to determine whether Nyrstar's actions constituted an unlawful interference with the union's rights and if the alleged conduct contravened the provisions of the Fair Work Act. This involved interpreting the statutory provisions and assessing the evidence presented by both parties. The court examined whether Nyrstar's actions amounted to an adverse action for the purpose of discouraging or preventing union activities, and whether such actions were unlawful under the Act. The court also had to consider the specific circumstances surrounding the alleged interference and its impact on the union's ability to organise and advocate for its members.

After considering the evidence and submissions from both parties, the court found that Nyrstar had indeed engaged in unlawful conduct that interfered with the union's rights. The court held that the respondent's actions were in breach of the Fair Work Act, specifically targeting the union's organisational rights. The court's decision was based on the clear evidence of interference and the respondent's failure to provide a valid justification for its actions. Consequently, the court ruled in favour of the union, affirming that Nyrstar's conduct was unlawful and ordered appropriate remedies to rectify the situation.

Construction, Forestry, Mining and Energy Union v Nyrstar Hobart Pty Ltd

STATEMENT

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established