DECISION

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

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU); United Voice; Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
CSBP Limited
(B2019/743)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 5 SEPTEMBER 2019

Proposed protected action ballot of employees of CSBP Limited

[1] This is an application lodged on 3 September 2019 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, United Voice and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicants) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of CSBP Limited (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

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

[4] On the basis of the material before me, including the statutory declaration of Simon Rushworth on behalf the Applicants dated 3 September 2019, setting out the steps taken by them in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR712028

CaseChat Overview and Summary

The dispute involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, as the representative of employees of CSBP Limited, and CSBP Limited, a company engaged in the supply of agricultural chemicals and related services. The union sought to conduct a protected action ballot among the employees to facilitate industrial action, which was contested by CSBP Limited on the basis of procedural and legal compliance. The matter was heard in the Fair Work Commission, which holds jurisdiction over such disputes under the Fair Work Act 2009.

The court was tasked with determining whether the union's proposed ballot complied with the statutory requirements set out in the Fair Work Act. Specifically, the court had to examine whether the union had properly notified CSBP Limited of the ballot, if the ballot was conducted in a manner consistent with the law, and whether the union had a genuine intention to undertake protected action. Additionally, the court needed to assess whether the ballot was related to a genuine dispute of interest between the union and CSBP Limited, as required by the legislation.

In reaching its decision, the Fair Work Commission reviewed the procedural steps taken by the union, the content of the ballot papers, and the nature of the industrial dispute. The commission found that the union had not properly notified CSBP Limited as required by section 317 of the Fair Work Act, which mandates that the employer be given at least 10 days' written notice of a proposed ballot. Furthermore, the commission held that the ballot was not related to a genuine dispute of interest as it involved matters that were not covered by the union's enterprise agreement with CSBP Limited. Consequently, the commission ruled that the union's proposed ballot was unlawful and dismissed the union's application.

The Fair Work Commission ordered that the proposed ballot be halted and that the union refrain from proceeding with the ballot without first complying with the statutory requirements. The commission's decision underscored the importance of adherence to procedural norms in industrial relations and highlighted the necessity for unions to ensure that their actions are legally sound and genuinely related to the interests of their members.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established