DECISION

Fair Work Act 2009
s.437—Protected action

Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Foodmach Pty Ltd T/A Foodmach
(B2021/682)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 AUGUST 2021

Proposed protected action ballot of employees of Foodmach Pty Ltd T/A Foodmach.

[1] This is an application by the Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Foodmach Pty Ltd T/A Foodmach (Respondent).

[2] On 17 August 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 Damian King 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 PR732930.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Foodmach Pty Ltd, trading as Foodmach. The union sought to conduct a protected action ballot of the employees of Foodmach, seeking approval from the Fair Work Commission to hold a vote on taking industrial action. The legal dispute arose over Foodmach's objection to the proposed ballot, raising concerns about the process and the scope of the ballot itself. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court included whether the union's proposed ballot complied with the requirements set out in the Fair Work Act 2009. The court had to determine if the ballot notice provided by the union was appropriate and whether the scope of the proposed industrial action was correctly defined. Another critical aspect was whether the union had acted in accordance with the procedural fairness principles when drafting the ballot notice. The court was also required to consider the timeliness and the procedural fairness in the union's application to the Fair Work Commission.

In its decision, the court examined the procedural fairness of the union's application and the appropriateness of the ballot notice. It found that the union had adequately notified the employer about the ballot and that the proposed scope of the industrial action was reasonable. The court ruled that the union had complied with the necessary procedural requirements under the Fair Work Act and upheld the application for the ballot. Consequently, the court dismissed Foodmach's objections and authorised the union to proceed with the ballot. The final orders of the court mandated that the union could conduct the ballot as proposed, provided it adhered to the terms outlined in its application.

Application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Foodmach Pty Ltd T/A Foodmach

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established