Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Americold Logistics Limited

[2023] FWC 1270

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Americold Logistics Limited

(B2023/507)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 30 MAY 2023

Proposed protected action ballot of employees of Americold Logistics Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Americold Logistics Limited (Respondent).

On 30 May 2023, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Chelsea Hill 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.

An order has been separately issued in
PR762632.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide on an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) for a protected action ballot order regarding certain employees of Americold Logistics Limited (the Respondent). The Applicant sought to conduct a protected action ballot, as provided under section 437 of the Fair Work Act 2009. The Respondent did not object to the application, and therefore, the matter proceeded on the papers without a hearing.

The legal issue before the Commission was whether the conditions of section 437 of the Act were satisfied, which include that there is a notification time in relation to the proposed agreement and that the requirements of section 443(1) of the Act have been met. The Applicant provided a declaration from Ms Chelsea Hill, who attested to the steps taken by the union in bargaining with the Respondent, and confirmed that the union had been genuinely trying to reach an agreement. Based on this evidence, the Deputy President found that the requirements for a protected action ballot were met.

As a result of the Deputy President's decision, an order was made allowing the Applicant to proceed with the protected action ballot. The order was separately issued in PR762632. The Commission's decision highlights the importance of providing evidence of genuine bargaining efforts and compliance with the requirements of the Fair Work Act 2009 when seeking to conduct a protected action ballot.

This case serves as a reminder to unions and employers of the need to engage in good faith bargaining and to follow the legal requirements when seeking to take protected industrial action. It also demonstrates the FWC's willingness to determine such matters efficiently and on the papers where the Respondent does not object to the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established