Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Harvey Fresh (1994) Ltd

[2022] FWC 2062

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

Harvey Fresh (1994) Ltd

(B2022/1166)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 AUGUST 2022

Proposed protected action ballot of employees of Harvey Fresh (1994) 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 Harvey Fresh (1994) Ltd (Respondent).

On 2 August 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 Mark Mocerino of the Applicant declared on 1 August 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 PR744485.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Harvey Fresh (1994) Ltd for a protected action ballot order. The union sought to conduct a ballot of its members, who were employees of Harvey Fresh, regarding potential protected industrial action. The union argued that it had been genuinely attempting to reach an agreement with the employer but had been unsuccessful. The employer did not oppose the application.

The legal issues before the Commission were whether the union had met the statutory requirements for a protected action ballot under section 437 of the Fair Work Act 2009. Specifically, the Commission needed to determine whether there was a notification period for the proposed agreement and if the union had genuinely attempted to reach an agreement with the employer. The union submitted that it had taken the necessary steps to bargain in good faith and that the employer had not opposed the application, implying acceptance of the union's position.

The Commission found that the union had met the statutory requirements for a protected action ballot. Based on the materials provided, including a statutory declaration from the union's representative, the Commission was satisfied that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement had been met. The employer's lack of opposition to the application further supported the Commission's determination. Consequently, the Commission decided to grant the union's application without the need for a hearing.

The Fair Work Commission issued an order allowing the union to proceed with the protected action ballot. This decision ensures that the union can lawfully conduct a ballot among its members regarding potential protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established