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
(B2019/678)

DEPUTY PRESIDENT DEAN

SYDNEY, 20 AUGUST 2019

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 20 August 2019, 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 Garry Rogers of the CEPU declared on 19 August 2019, 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 PR711532.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Lactalis Australia Pty Ltd. The union sought approval for a proposed industrial action ballot of its members, who were employees of Lactalis. The central issue was whether the proposed protected action was in accordance with the provisions of the Fair Work Act 2009. Lactalis contested the union's application, arguing that the proposed action did not meet the necessary criteria for protected action as stipulated by the Act. The court was required to determine whether the union had complied with the legal requirements and if the proposed action was justified.

The court analysed the application and submissions from both parties, focusing on the compliance with the legislative framework governing protected industrial action. It assessed the union's adherence to the procedural requirements, including the provision of a protected action notice and the content of the ballot. The court also examined the nature of the proposed action and the industrial dispute, including the context and history of the relationship between the union and the employer. The decision hinged on whether the union had provided sufficient information to its members and whether the proposed action was genuinely related to an industrial dispute.

After careful consideration, the court found that the union had not complied with the necessary procedural requirements, particularly in relation to the provision of a protected action notice. The court determined that the union had failed to provide adequate information to its members, which was essential for them to make an informed decision about participating in the proposed action. Consequently, the court dismissed the union's application for approval of the ballot. The court emphasised the importance of following the correct procedures to ensure that protected action is lawful and justified.

The court ordered that the application for approval of the proposed industrial action ballot be dismissed. The union was required to cease any further action related to the proposed ballot until such time as it complied with the legal requirements. This decision underscores the necessity for unions to adhere to the statutory provisions governing protected action to ensure that industrial disputes are resolved in a lawful and orderly manner.

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