DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Campbell Australasia Pty Limited T/A Campbell’s Soups Australia
(B2020/258)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 MAY 2020

Proposed protected action ballot of employees of Campbell Australasia Pty Limited.

[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 Campbell Australasia Pty Limited T/A Campbell’s Soups Australia (Respondent).

[2] On 6 May 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 D King 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 PR719182.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) sought an injunction to prevent Campbell Australasia Pty Limited T/A Campbell's Soups Australia (the Employer) from proceeding with a proposed protected action ballot of its employees. The Union claimed that the ballot would involve employees in activities that would breach their contracts of employment, which would be unlawful under the Fair Work Act 2009 (Cth). The Employer argued that the ballot was necessary to obtain employee consent for the Union to engage in protected industrial action.

The court had to determine whether the proposed ballot constituted an unlawful request for employee consent to breach their contracts of employment. The Union contended that the ballot would compel employees to vote in favour of protected industrial action, which would amount to a request for consent to breach their contracts. The Employer, on the other hand, submitted that the ballot was simply a means of ascertaining employee support for protected action and did not constitute a request for consent to breach their contracts. The court had to examine the terms of the ballot and the nature of the proposed protected action to resolve the dispute.

The court held that the proposed ballot did not constitute a request for employee consent to breach their contracts of employment. The ballot was designed to determine the level of employee support for the proposed protected action, which was a lawful activity under the Fair Work Act. The court found that the ballot did not compel employees to vote in favour of protected industrial action, and therefore, did not amount to a request for consent to breach their contracts. The Employer was not restrained from proceeding with the proposed ballot. The Union's application for an injunction was dismissed.

The court did not make any orders as the Union's application for an injunction was dismissed. The Employer was free to proceed with the proposed ballot of its employees.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Campbell Australasia Pty Limited T/A Campbell's Soups Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established