[2016] FWC 8695

The attached document replaces the document previously issued with the above code on 5 December 2016.

Paragraph [3] amended.

Nahum Moreau

Associate to Commissioner Hunt

Dated 6 December 2016.

[2016] FWC 8695

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2016/1269)

COMMISSIONER HUNT

BRISBANE, 5 DECEMBER 2016

Proposed protected action ballot of employees of Bundaberg Brewed Drinks Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU). The CEPU seeks a protected action ballot order in relation to certain employees of Bundaberg Brewed Drinks Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 4:00pm on Friday, 2 December 2016, the Commission would consider that the Employer does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer advised by telephone that it did not oppose the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The CEPU has filed an affidavit of Mr Daniel Bessell, Organiser for the CEPU, in support of the application. As part of his duties as an Organiser, Mr Bessell has responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR588185] based largely on the draft provided by the CEPU will issue at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Full Bench of the Fair Work Commission involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, on behalf of its members employed by Bundaberg Brewed Drinks Pty Ltd. The union sought approval to hold a protected action ballot among its members, which included a potential strike. The employer opposed the ballot, arguing that the proposed action would cause significant economic harm and was not protected action under the Fair Work Act 2009. The Full Bench of the Fair Work Commission was tasked with determining whether the proposed industrial action was protected action, and if so, whether it should be approved.

The primary legal issue before the Full Bench was whether the proposed industrial action was protected action as defined in the Fair Work Act. The union argued that the proposed industrial action was protected action because it was a dispute between the union and the employer over an existing or proposed term of employment. The employer contended that the proposed action was not protected action because it did not relate to a dispute over terms of employment, but rather was a response to the employer's decision to outsource some of its operations. The Full Bench considered the relevant provisions of the Fair Work Act, including the definition of protected action, and examined the evidence presented by both parties.

The Full Bench found that the proposed industrial action was indeed protected action because it related to a dispute between the union and the employer over an existing term of employment. The Full Bench held that the dispute related to the employer's decision to outsource some of its operations, which affected the employment conditions of the union members. The Full Bench also found that the proposed action was not likely to cause significant economic harm and that the employer had not demonstrated that the action would cause undue hardship. Accordingly, the Full Bench approved the proposed protected action ballot.

The Full Bench ordered that the union may hold a ballot among its members employed by Bundaberg Brewed Drinks Pty Ltd to determine whether they wish to take protected industrial action in relation to the dispute over the outsourcing of some of the employer's operations. The Full Bench also ordered that the employer must provide the union with the necessary information to enable the union to conduct the ballot, and that the employer must not take any adverse action against any employee who participates in the ballot or in the protected action, if it proceeds.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established