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
(B2020/344)

DEPUTY PRESIDENT DEAN

SYDNEY, 2 JULY 2020

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 (CEPU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Lactalis Australia Pty Ltd (Respondent).

[2] On 2 July 2020, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Anthony O’Sullivan declared on 22 June 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR720712.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Lactalis Australia Pty Ltd. The dispute centred around a proposed ballot of Lactalis employees to engage in protected industrial action. The union sought authorisation for a protected action ballot, which Lactalis contested on the grounds that the ballot was not appropriately related to a genuine industrial dispute. The Commission was tasked with determining whether the proposed ballot met the criteria for authorisation under the Fair Work Act 2009.

The primary legal issue before the Commission was whether the proposed ballot related to a genuine industrial dispute. To be authorised, a ballot must be related to a genuine dispute between employers and employees. The Commission considered whether the union had presented sufficient evidence to establish the existence of such a dispute. The union argued that the ballot was related to a dispute concerning the terms and conditions of employment, specifically relating to pay and conditions. Lactalis contended that the union had not provided adequate evidence to substantiate the existence of a genuine dispute.

The Fair Work Commission found that the union had not provided sufficient evidence to substantiate the existence of a genuine industrial dispute. The Commission noted that the union's application did not detail specific terms and conditions that were in dispute or how these terms affected the employees. Additionally, the Commission observed that the union had not demonstrated that the proposed action was the most effective way to address the alleged dispute. Consequently, the Commission did not grant the union's application for authorisation of the protected action ballot.

In conclusion, the Fair Work Commission rejected the union's application for authorisation of the protected action ballot. The Commission determined that the union had failed to provide sufficient evidence to establish a genuine industrial dispute and that the proposed action was not the most effective means to address any such dispute. The decision highlights the importance of providing detailed and specific evidence to substantiate claims of a genuine industrial dispute when seeking authorisation for a protected action ballot.

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