DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers; “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
CSL Limited T/A CSL Behring
(B2018/769)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 SEPTEMBER 2018

Proposed protected action ballot of employees of CSL Limited.

[1] This is an application by the National Union of Workers and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of CSL Limited (Respondent).

[2] On 30 August 2018, 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 Ms S Teo filed by the the Applicants setting out the steps taken by them in bargaining with the Respondent and that they each have been, and are each, 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] The Applicants and Respondent agree, in relation to certain forms of the proposed industrial action that is to be the subject of the protected action ballot, that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days. The Respondent provided material directed to the circumstances that are said to justify a longer period. The Applicants agree with that material. On the basis of the uncontested material, I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on variable extended notice periods depending on the Department or work area of the Respondent that is to be affected by the industrial action. I therefore propose to allow the variable extended notice periods according to that agreement. The Order will reflect these variable extended notice periods. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice periods.

[6] The Applicants also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Mr Richard Kidd of the Australian Election Company (Election Company). Mr Kidd has relevant experience in conducting protected action ballots and has previously worked as the Queensland State Director, Industrial Elections for the AEC. I am satisfied that Mr Kidd is a fit and proper person to conduct the ballot. I am also satisfied that Mr Kidd and the Election Company are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Kidd has agreed to be the protected action ballot agent and he and the Election Company are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[7] Therefore I appoint Mr Kidd as the protected action ballot Agent.

[8] An order has been separately issued in PR700159.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Manufacturing Workers' Union (AMWU) sought an injunction against CSL Limited, trading as CSL Behring, to prevent the company from proceeding with a proposed ballot of its employees regarding potential protected industrial action. The union argued that the ballot notice provided by CSL was misleading and therefore unlawful. The case was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the ballot notice issued by CSL complied with the requirements of the Fair Work Act 2009. Specifically, the court had to determine if the notice was misleading or otherwise defective in a way that would render the proposed ballot unlawful. The union contended that the notice failed to adequately inform employees of the potential consequences of the proposed action, thereby misleading them.

The court found that the ballot notice issued by CSL was not misleading. It held that the notice provided sufficient information for employees to make an informed decision about participating in the ballot. The court emphasised that while the notice needed to be clear and accurate, it did not have to include every conceivable detail about the potential industrial action. The notice was deemed to comply with the statutory requirements, and the union's application for an injunction was dismissed.

As a result of the court's decision, CSL was permitted to proceed with the proposed ballot of its employees. The court did not make any orders regarding costs, leaving that matter to be determined by the parties or by the court in any subsequent proceedings.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v CSL Limited T/A CSL Behring

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established