DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Paper Australia Pty Ltd
(B2021/1132)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 NOVEMBER 2021

Proposed protected action ballot of employees of Paper Australia Pty Ltd.

[1] This is an application by the United Workers’ Union (AMWU) (Applicant) made 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 (Respondent).

[2] On 22 November 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Daniel Draicchio of the Applicant 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 PR736037.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider a dispute between the United Workers' Union and Paper Australia Pty Ltd. The Union sought authorisation to conduct a protected action ballot among the employees of Paper Australia, a company operating in the paper manufacturing sector. The Union's application followed a breakdown in negotiations over proposed changes to the employees' working conditions, which Paper Australia sought to implement. The company opposed the ballot on the grounds that it would unduly disrupt their operations and potentially mislead the employees about the implications of such an action.

The legal issues before the Commission were whether the proposed ballot was protected action as defined by the Fair Work Act 2009 and whether it was appropriate to grant authorisation under the Act. Key considerations included the nature of the proposed action, the context in which it was being proposed, and whether the ballot was being conducted in good faith as required by the Act. The Commission also needed to determine if the ballot was necessary and proportionate in response to the employer's proposed changes.

In its decision, the Commission found that the proposed ballot was protected action and could be authorised. The Commission considered that the Union's intention to ballot was in response to the employer's proposed changes, which the Union viewed as potentially detrimental to the employees' conditions. The Commission concluded that the proposed action was being conducted in good faith and was necessary to allow employees to make an informed decision about potential industrial action. The Commission noted the importance of protecting the right of employees to organise and take action to protect their interests, provided it was done within the legal framework established by the Act.

The Commission authorised the ballot, subject to certain conditions to ensure that it was conducted in a manner that minimised disruption to the employer's operations. The employer was also granted an opportunity to present its views to the employees during the ballot process, ensuring that all parties had a chance to communicate their positions effectively. The decision underscored the importance of balancing the rights of employees to organise with the need to maintain operational continuity for the employer.

United Workers' Union v Paper Australia 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