United Workers' Union v Paper Australia Pty Ltd T/A Opal Australian Paper

[2023] FWC 3000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

United Workers' Union
v

Paper Australia Pty Ltd T/A Opal Australian Paper

(B2023/1256)

COMMISSIONER JOHNS

MELBOURNE, 16 NOVEMBER 2023

Proposed protected action ballot of employees of Paper Australia Pty Ltd Trading As Opal Australian Paper.

The United Workers’ Union (UWU or Applicant) made an application under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Paper Australia Pty Ltd T/A Opal Australian Paper (Opal or Employer).

On 15 November 2023, Opal raised concerns in relation to certain clauses contained within the Applicant’s proposed order.[1] The Applicant did not object to the removal of those clauses.
In the circumstances, and at the suggestion of the parties, I have decided to determine the matter on the papers without holding a hearing.
On the basis of the material before me, including the declaration of Mr David Harris, Organiser, which

a)sets out the steps taken by the UWU in bargaining with the Employer and
b)establishes that the UWU has been, and is, genuinely trying to reach agreement with Opal,

I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd t/as CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.[2]
For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 30 November 2023.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR768333.
This matter will be assigned to me to conduct the s.448A compulsory conciliation conference. I will issue an Order requiring the attendance of all bargaining representatives involved in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

COMMISSIONER

[1] Clauses 11.2 and 11.3.

[2] Democratic Outcomes Pty Ltd t/as CiVS [2023] FWC 1400.

[3] This is, in effect, 10 working days from the date of the Order, as sought by the Applicant.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers’ Union sought a protected action ballot order in relation to employees of Paper Australia Pty Ltd T/A Opal Australian Paper under section 437 of the Fair Work Act 2009. The union argued it had met the requirements of the Act for a ballot to be conducted, including that there was a notification time in relation to the proposed agreement and that it had been genuinely trying to reach agreement with the employer. The employer raised concerns about certain clauses in the proposed ballot order, but the union did not object to removing those clauses. The matter was decided on the papers without a hearing.

The court had to determine if the union met the requirements of section 443(1) of the Act for a protected action ballot order, including if there was a notification time and if the union had been genuinely trying to reach agreement. The court considered the declaration of the union organiser, which established that the union had been genuinely trying to reach agreement and that there was a notification time. The court also noted that the ballot agent was approved under section 468A of the Act.

The court determined that the union met the requirements of section 443(1) of the Act. It found that the union had been genuinely trying to reach agreement with the employer and that there was a notification time. The court set the date by which voting was to close as 30 November 2023, which established the ballot period for the purpose of section 448A(2) of the Act. The court also ordered that a compulsory conciliation conference be held to conduct meaningful negotiations.

The court issued an order approving the protected action ballot order and setting the closing date for voting. The ballot agent would conduct the ballot and the parties would attend a compulsory conciliation conference to conduct meaningful negotiations. The orders ensured that the union could proceed with the ballot and that the employer and union had an opportunity to negotiate and reach an agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established