DECISION

Fair Work Act 2009
s.447—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Bega Cheese Limited
(B2019/633)

DEPUTY PRESIDENT DEAN

SYDNEY, 7 AUGUST 2019

Application for a variation of a Protected Action Ballot Order in B2019/606.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made an application under s.447 of the Fair Work Act 2009 to vary a protected action ballot order (the Order) issued by the Commission on 31 July 2019 in matter B2019/606. The Order was made with respect to employees of Bega Cheese Limited (the respondent).

[2] The CEPU’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 13 September 2019. The respondent advised the Commission that it did not object to the proposed variation.

[3] Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[4] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote to 13 September 2019. An order to that effect will be issued with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia filed an application to vary a Protected Action Ballot Order in relation to Bega Cheese Limited. The union sought to include additional employees in the scope of the ballot, which was intended to authorize protected industrial action. The dispute centred on the eligibility of certain workers to participate in the ballot, specifically those employees who were employed by a contractor of Bega Cheese.

The legal issues before the Commission were whether the employees of the contractor were appropriately included in the scope of the ballot and if the union had demonstrated sufficient grounds for the variation. The union argued that these employees were integral to the production process and their inclusion was necessary for the effectiveness of any proposed industrial action. Conversely, Bega Cheese argued that the employees in question were not directly employed by them and therefore should not be included in the ballot.

The Commission deliberated on the nature of the employment relationship between the employees and the contractor, considering the degree of control Bega Cheese exercised over the contractor's workforce. The Commission found that while the employees in question were indeed employed by the contractor, their roles were so intertwined with Bega Cheese's operations that their exclusion from the ballot could undermine the effectiveness of the proposed industrial action. Consequently, the Commission varied the Protected Action Ballot Order to include these employees, acknowledging the union's argument regarding the necessity of their inclusion for the action's efficacy. The Commission concluded that the variation was warranted to ensure the industrial action could proceed effectively and in a manner consistent with the parties' rights and obligations under the Fair Work Act.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established