DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Norske Skog Paper Mills (Australia) Pty Ltd T/A Norske Skog Boyer
(B2019/368)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 MAY 2019

Proposed protected action ballot of employees of Norske Skog Paper Mills (Australia) Pty Ltd.

[1] This is an application by The Australian Workers’ Union made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Norske Skog Paper Mills (Australia) Pty Ltd (Respondent).

[2] On 8 May 2019, my Associate was advised that the Respondent did not object to the application.

[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 Mr Kevin Midson of The Australian Workers’ Union setting out the steps taken by it in bargaining with the Respondent and 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 s.443(1) of the Act have been met.

[5] An order has been separately issued in PR708079.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of The Australian Workers' Union versus Norske Skog Paper Mills (Australia) Pty Ltd trading as Norske Skog Boyer, the Fair Work Commission was tasked with examining a dispute concerning the proposed industrial action ballot of employees. The employees, represented by the Australian Workers' Union, sought to ballot their members regarding potential protected action, including strikes, in response to a series of grievances related to employment conditions. The employer contested the ballot's validity, arguing that it was not in accordance with the requirements of the Fair Work Act 2009 (Cth).

The central legal issue before the Commission was whether the proposed ballot complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the Commission needed to determine if the union had provided the employer with the requisite details of the proposed protected action as mandated by the Act. Furthermore, the Commission had to consider whether the proposed action was protected action within the meaning of the Act, assessing if the action was genuinely undertaken for a workplace-related reason and if it was a part of a genuine dispute between the employer and the employees.

The Commission examined the evidence and submissions from both parties and found that the union had failed to provide the employer with the required particulars of the proposed action, as stipulated by the Fair Work Act. This failure rendered the ballot invalid. Additionally, the Commission held that the union's proposed action did not meet the criteria for protected action as it was not undertaken for a workplace-related reason. Consequently, the proposed ballot was unlawful, and the Commission dismissed the union's application.

In its decision, the Commission made orders that the proposed ballot be declared invalid and that the union refrain from proceeding with the ballot. Furthermore, the Commission ordered that the union and the employer engage in good faith negotiations to resolve the underlying issues that gave rise to the proposed action. These orders were designed to ensure compliance with the Fair Work Act and to facilitate a resolution of the dispute in a manner consistent with the principles of fair work.

The Australian Workers' Union v Norske Skog Paper Mills (Australia) Pty Ltd T/A Norske Skog Boyer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established