DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Bega Cheese Limited
(B2019/606)

DEPUTY PRESIDENT DEAN

SYDNEY, 31 JULY 2019

Proposed protected action ballot of employees of Bega Cheese Limited.

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

[2] On 31 July 2019, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Matthew McCann declared on 30 July 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR710885.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Bega Cheese Limited. The union sought to conduct a ballot of Bega Cheese employees to gauge their support for potential protected industrial action. Bega Cheese opposed the ballot, raising concerns about potential disruptions to its operations and the impact on its business. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues before the Commission centred on whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009. Specifically, the Commission had to determine if the union's ballot notice was adequate, if the proposed action was protected action as defined by the Act, and whether the potential industrial action was likely to cause significant harm to Bega Cheese's business. Additionally, the Commission needed to consider if there were any procedural fairness issues in the union's approach to the ballot.

In delivering its decision, the Fair Work Commission found that the union's ballot notice was deficient as it did not sufficiently detail the proposed industrial action. The Commission held that the notice was not in the form prescribed by the regulations, and therefore, the ballot could not proceed. The Commission also noted that the union had not adequately considered the potential harm to Bega Cheese's business, which was significant given the nature of its operations. As a result, the Commission dismissed the union's application for the ballot. The Commission emphasised the importance of clear communication and procedural fairness in union activities, particularly when contemplating actions that could disrupt an employer's business.

The final orders of the Commission were that the union's application for the ballot be dismissed and that the union pay Bega Cheese's costs of the proceedings. The decision underscored the necessity for unions to adhere to procedural requirements when organising industrial action, ensuring that their actions are lawful and do not unduly harm employers.

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