DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Lactalis Australia Pty Ltd
(B2021/419)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JUNE 2021

Proposed protected action ballot of employees of Lactalis Australia Pty Ltd.

[1] 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 Lactalis Australia Pty Ltd (Respondent).

[2] On 15 June 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] 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.

[5] An order has been separately issued in PR730737.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to consider a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Lactalis Australia Pty Ltd. The Union proposed to hold a ballot of its members, who were employees of Lactalis, to determine whether they would take protected industrial action. Lactalis sought an order preventing the Union from holding the ballot, arguing that the proposed ballot was not valid. The Commission was required to determine whether the proposed ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth).

The primary legal issue before the Commission was whether the proposed ballot complied with the requirements of section 365 of the Fair Work Act. This section sets out the conditions that must be satisfied for a proposed protected action ballot to be valid. The Union argued that the ballot complied with the relevant provisions, while Lactalis contended that it did not. The Commission had to consider whether the ballot notice and other documentation provided to employees were in the required form and content, and whether the ballot was being held for a permitted purpose.

The Commission found that the proposed ballot did not comply with the requirements of section 365 of the Fair Work Act. The Commission held that the ballot notice did not include all of the information required by the Act, and that the ballot was not being held for a permitted purpose. The Commission also found that the Union had not provided Lactalis with the information required by section 366 of the Act before holding the ballot. The Commission therefore made an order preventing the Union from holding the proposed ballot.

The Fair Work Commission made an order preventing the Union from holding the proposed ballot of its members employed by Lactalis Australia Pty Ltd. The Commission found that the proposed ballot did not comply with the requirements of the Fair Work Act, and that the Union had not provided Lactalis with the information required by the Act before holding the ballot. The order preventing the ballot from proceeding was made to ensure compliance with the Act and to protect the rights of both the Union and Lactalis.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established