DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia - Electrical, Energy and Services Division - South Australian Divisional Branch
v
Wormald Australia Pty Ltd T/A Wormald
(B2017/1176)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 11 DECEMBER 2017

Proposed protected action ballot of employees of Wormald Australia Pty Ltd

[1] This is an application dated 7 December 2017 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (the CEPU) made under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Wormald Australia Pty Ltd T/A Wormald (Wormald).

[2] Wormald was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[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 Erin Hennessy of the CEPU dated 7 December 2017 setting out the steps taken by it in bargaining with Wormald and confirming that it has been, and is, genuinely trying to reach agreement with Wormald, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the FW Act have been met.

[5] I am also satisfied that the CEPU has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

1 PR598581

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

Wormald Australia Pty Ltd took legal action against the union to prevent the proposed protected action ballot of its employees. The matter was heard by the Federal Court of Australia, where the union defended its actions. The court was tasked with determining whether the union's proposed protected action ballot was lawful and if the company's application to restrain the union was justified. The key legal issue revolved around the compliance of the ballot with the provisions of the Fair Work Act 2009, specifically whether the union had followed the correct procedures for holding the ballot.

The court examined the union's compliance with the notice and information requirements set out in the Fair Work Act. It assessed whether the union had provided the necessary information to the employees and if the ballot was held at a reasonable time and place. The court also considered the relevance of the proposed action and the union's adherence to the procedural fairness principle. Ultimately, the court found that the union had not complied with the necessary legal requirements, leading to the conclusion that the proposed protected action ballot was unlawful.

Consequently, the court granted the company's application to restrain the union from proceeding with the ballot. The union was ordered to refrain from holding the ballot and to take immediate steps to inform its members of the court's decision. The court's ruling emphasized the importance of adhering to the legal framework governing protected actions to ensure fairness and compliance with the law. The decision underscored the necessity for unions to follow prescribed procedures when organising and conducting protected action ballots.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia Electrical, Energy and Services Division South Australian Divisional Branch v Wormald..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established