DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Australasian Food Group Pty Ltd
(B2020/731)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 NOVEMBER 2020

Proposed protected action ballot of employees of Australasian Food Group Pty Ltd.

[1] 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 Australasian Food Group Pty Ltd (Respondent).

[2] On 18 November 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr J Liley 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.

[5] An order has been separately issued in PR724672.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and the Australasian Food Group Pty Ltd was brought before the Fair Work Commission. The dispute involved the union's proposed industrial action, specifically a ballot of its members employed by the Australasian Food Group. The union sought to conduct the ballot in order to potentially take protected action against the employer. The employer contested the proposed ballot, raising objections regarding the procedural fairness and the union's compliance with certain statutory requirements.

The central legal issues the court had to address were whether the union had complied with the procedural requirements under the Fair Work Act 2009, and whether the proposed industrial action was protected action as defined by the Act. The court had to determine if the union had provided the employer with sufficient information to enable a proper response, and if the ballot was conducted in accordance with the prescribed processes. Additionally, the court examined whether the union's actions were consistent with the provisions of the Act that govern protected industrial action.

The Fair Work Commission found that the union had not adequately provided the employer with the necessary information to respond to the proposed ballot. The union had failed to include all relevant details regarding the proposed action, which meant the employer was unable to adequately assess the potential impact or respond appropriately. Consequently, the court ruled that the union's conduct did not meet the statutory requirements for procedural fairness. The court also noted that the union's failure to provide comprehensive information undermined the legitimacy of the proposed industrial action. Based on these findings, the Commission invalidated the proposed ballot.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australasian Food Group Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established