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

[2022] FWC 2812

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

Bega Cheese Limited

(B2022/1577)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 OCTOBER 2022

Proposed protected action ballot of employees of Bega Cheese 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 Bega Cheese Limited (Respondent).

On 19 October 2022, 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 PR747006.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The applicant, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought a protected action ballot order under section 437 of the Fair Work Act 2009 in relation to certain employees of the respondent, Bega Cheese Limited. The application was made due to difficulties in reaching an agreement during bargaining. Bega Cheese Limited did not object to the application, resulting in the Deputy President deciding to determine the matter based on the submitted papers without a hearing. The focus of the decision was to determine whether the union had genuinely attempted to reach an agreement and whether the requirements of section 443(1) of the Act had been met. The Deputy President found that the union had taken necessary steps in bargaining and had genuinely tried to reach an agreement, thereby satisfying the requirements for a protected action ballot.

The legal issues before the Deputy President were whether the union had genuinely attempted to reach an agreement with Bega Cheese Limited and if the requirements for a protected action ballot under section 443(1) of the Fair Work Act 2009 were met. The union's declaration by Ms Chelsea Hill was crucial in establishing that the union had been genuinely trying to reach an agreement and had taken all necessary steps to do so. Additionally, it was necessary to verify if the notification period for the proposed agreement was applicable. The Deputy President evaluated the evidence and concluded that the union had met the legal requirements, thereby permitting the application for a protected action ballot to proceed.

In reaching the decision, the Deputy President relied on the declaration by Ms Chelsea Hill, which outlined the steps taken by the union in bargaining with Bega Cheese Limited. The declaration demonstrated the union's genuine efforts to reach an agreement. The Deputy President was satisfied that the union had fulfilled its obligations and that the requirements under section 443(1) of the Act were met, including the notification time for the proposed agreement. Consequently, the application for a protected action ballot was approved, and an order was issued separately in PR747006.

The final orders of the Deputy President were to grant the application for a protected action ballot and issue an order in PR747006. The union was thus permitted to proceed with the ballot as it had satisfied the legal requirements under the Fair Work Act 2009. This decision affirmed the union's right to seek a ballot for protected action in the pursuit of reaching a fair agreement with the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established