Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Fonterra Brands (Australia) Pty Ltd

[2022] FWC 1910

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
v

Fonterra Brands (Australia) Pty Ltd

(B2022/712)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 JULY 2022

Proposed protected action ballot of employees of Fonterra Brands (Australia) Pty Ltd.

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 Fonterra Brands (Australia) Pty Ltd (Respondent).

On 20 July 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 PR743986.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered an application made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for an order allowing a protected action ballot to be conducted among certain employees of Fonterra Brands (Australia) Pty Ltd (the Respondent). The Applicant sought to conduct the ballot due to ongoing difficulties in reaching an agreement with the Respondent regarding certain terms and conditions of employment. The matter was determined by Deputy President Clancy on 20 July 2022, in Melbourne, following the Respondent's decision not to object to the application. Consequently, the Deputy President decided to proceed with the matter based on the available documentation without the need for a hearing.

The primary legal issue before the FWC was whether the Applicant had satisfied the requirements under section 443(1) of the Act, which set out the criteria for granting a protected action ballot order. This involved examining whether there was a notification time in relation to the proposed agreement and whether the Applicant had genuinely attempted to reach an agreement with the Respondent. Additionally, the FWC had to consider the declaration of Ms Chelsea Hill of the Applicant, which detailed the steps taken in bargaining with the Respondent and the Applicant's efforts to reach an agreement.

The Deputy President concluded that the Applicant had met the requirements under section 443(1) of the Act. Based on the material presented, including the declaration by Ms Chelsea Hill, the Deputy President was satisfied that a notification time existed regarding the proposed agreement and that the Applicant had genuinely attempted to reach an agreement with the Respondent. Consequently, the Deputy President issued an order permitting the proposed protected action ballot to proceed. An additional order was also issued in PR743986.

The outcome of this case is a clear affirmation of the Applicant's right to proceed with a protected action ballot, provided it adheres to the statutory requirements under the Act. This decision underscores the importance of genuine bargaining efforts and the statutory framework that governs such processes in Australia.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established