Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v FreshFood Management Services Pty Ltd

[2022] FWC 1052

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

FreshFood Management Services Pty Ltd

(B2022/387)

VICE PRESIDENT CATANZARITI

SYDNEY, 5 MAY 2022

Proposed protected action ballot of employees of FreshFood Management Services 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of FreshFood Management Services Pty Ltd (Respondent).

On 4 May 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Prameesh Chandra of the Applicant declared on 3 May 2022, 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 PR741292.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, seeking a protected action ballot order for employees of FreshFood Management Services Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. FreshFood Management Services Pty Ltd did not oppose the application, allowing the matter to be determined on the papers without a hearing.

The legal issues at hand involved whether the union had genuinely attempted to negotiate with the employer and whether the statutory notification period for a protected action ballot had been met. The union had to demonstrate that it was genuinely attempting to reach an agreement with FreshFood Management Services Pty Ltd and that the necessary conditions outlined in section 443(1) of the Fair Work Act had been fulfilled. The union submitted a statutory declaration by Prameesh Chandra, which detailed the bargaining process and the union's efforts to reach an agreement.

After reviewing the provided materials, including the declaration by Prameesh Chandra, the Vice President Catanzariti was satisfied that the union had genuinely attempted to reach an agreement and that the statutory notification period had been adhered to. Consequently, the Vice President determined the matter in favour of the union, issuing an order for a protected action ballot. This decision underscores the importance of genuine bargaining and adherence to statutory requirements in industrial relations matters under the Fair Work Act.

An order was issued in PR741292, permitting the union to proceed with the ballot for protected action among the employees of FreshFood Management Services Pty Ltd.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established