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

[2024] FWC 1820

FAIR WORK COMMISSION

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

George Weston Foods Limited

(B2024/870)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 11 JULY 2024

Proposed protected action ballot of employees of George Weston Foods Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of George Weston Foods Limited (GWF or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] has made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 10 July 2024, the Commission was advised that the Employer, in effect, 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 Chelsea Hill, Legal and Industrial Admin Facilitator, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with it, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 22 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR776914.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference with the other related matter. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2024/869.

[2] This is, in effect, 30 working days from the making of the Order and was the date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of George Weston Foods Limited (GWF). This application was made under section 437 of the Fair Work Act 2009, seeking to facilitate a ballot for potential industrial action. The Australian Manufacturing Workers’ Union (AMWU) had also applied for a similar ballot order concerning the same proposed enterprise agreement. The Fair Work Commission decided to determine the application without a hearing, considering that GWF did not object to the request. The Commission examined the evidence provided by CEPU, including the declaration by Chelsea Hill, Legal and Industrial Admin Facilitator, which detailed the union's efforts to negotiate in good faith with the employer.

The primary legal issues before the Deputy President, Wright, were whether the notification period for the proposed agreement had been met and if all the statutory requirements under section 443(1) of the Act were fulfilled. The Commission also needed to decide on the appropriate closing date for the ballot to ensure it complied with section 443(3)(c) of the Act. Given that the union had demonstrated genuine efforts in bargaining, and the employer did not oppose the ballot, the Deputy President concluded that all conditions for the ballot were satisfied. The Australian Electoral Commission was designated to conduct the ballot, with voting to close on 22 August 2024. This date was determined to be 30 working days from the issuance of the Order, aligning with the union's request.

The Fair Work Commission granted the CEPU's application, issuing an Order for the protected action ballot to proceed. The ballot was scheduled to be overseen by the Australian Electoral Commission, with the voting period concluding on 22 August 2024. Additionally, the matter was assigned to another Commission member to oversee a compulsory conciliation conference concerning the enterprise agreement, ensuring both unions and the employer were ready to engage in meaningful negotiations. Directions were anticipated to support this process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established