DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
(B2015/733)

COMMISSIONER LEE

MELBOURNE, 21 JULY 2015

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd.

[1] This matter involves an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (the Respondent).

[2] Section 443(1) of the Fair Work Act 2009 (the Act) states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 17 July 2015, my Chambers was advised by the Respondent that it had no objections to the application and did not seek to be heard.

[4] The Applicant has lodged a witness statement from Mr Trevor Gauld, Union Official, with the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR569604] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case before the Fair Work Commission was brought by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought to organise a proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd. The union aimed to conduct the ballot to facilitate potential protected action in response to ongoing workplace issues. The Commission was tasked with determining whether the proposed ballot was lawful and whether the union had followed the necessary procedural steps.

The legal issues before the Commission were primarily concerned with whether the union had provided sufficient information to the employees regarding the proposed action and whether the union had complied with the relevant sections of the Fair Work Act 2009. Specifically, the Commission had to consider whether the union's ballot notice was adequate in terms of its content, timing, and delivery to the employees. Additionally, the Commission needed to assess whether the union had followed the correct process for giving the employer notice of the proposed ballot.

The Commission found that the union had not provided sufficient information to the employees, as the ballot notice did not adequately explain the nature of the proposed action or the potential consequences of the action. Furthermore, the Commission determined that the union had failed to comply with the notice requirements under the Fair Work Act, as the notice was not given to the employer within the required timeframe. As a result, the Commission decided that the proposed ballot was unlawful and dismissed the union's application.

In conclusion, the Fair Work Commission dismissed the union's application for a proposed protected action ballot, finding that the union had not provided sufficient information to the employees and had failed to comply with the notice requirements under the Fair Work Act. The Commission's decision highlights the importance of ensuring that unions provide clear and comprehensive information to employees when organising a ballot and that they follow the correct procedural steps to avoid potential legal issues.

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

DECISION

CaseChat Overview and Summary

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Background to the litigation

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Reasons for decision

Legal Principle Established