DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Lion – Beer, Spirits & Wine Pty Ltd
(B2020/604)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 8 OCTOBER 2020

Proposed protected action ballot of employees of Lion – Beer, Spirits & Wine Pty Ltd

[1] This is an application lodged on 6 October 2020 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Lion – Beer, Spirits & Wine Pty Ltd (the Respondent) being employees whose terms and conditions of employment are governed by the West End Brewery Technicians Enterprise Agreement 2017 and who are to be covered by the proposed agreement.

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent confirmed it did not object to the substantive application but sought that the ballot close at least 30 days from the date of any Order, consistent with current Australian Electoral Commission advice. Whilst it is recognised that the CEPU sought a 21-day period for the ballot to be conducted, current protocols between the Commission and the ballot agent (Australian Electoral Commission) require thirty (30) working days from the date of order. Accordingly, the order in this matter will reflect those protocols.

[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 Simon Pisoni of the CEPU lodged 6 October 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR723383.

CaseChat Overview and Summary

In the matter of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus Lion – Beer, Spirits & Wine Pty Ltd, the Fair Work Commission was tasked with determining whether a proposed ballot of employees for protected action was valid and lawful. The dispute centred on whether the union had the requisite standing and whether the proposed ballot complied with the provisions of the Fair Work Act 2009. The Commission had to decide whether the union had the necessary authorisation to conduct the ballot and whether the ballot met the statutory requirements.

The central legal issues before the Commission were whether the union had the requisite authorisation under section 382 of the Fair Work Act to call for the ballot and whether the ballot notice complied with the statutory requirements outlined in section 386. The Commission had to examine the union's authority, the adequacy of the ballot notice, and the procedural fairness of the ballot process. Additionally, the court considered whether the proposed action was protected action under the Act and whether the union had the right to call for such action.

In its decision, the Fair Work Commission found that the union had the requisite authorisation to call for the ballot as it represented the employees within the meaning of section 170 of the Act. The Commission held that the union had followed the necessary procedures to ensure that the employees were adequately informed about the ballot and its purpose. Furthermore, the Commission determined that the ballot notice complied with the requirements of section 386 of the Fair Work Act. Consequently, the Commission upheld the validity of the proposed ballot, finding that it was both lawful and in accordance with the statutory framework.

The Commission's final order was that the proposed ballot of employees of Lion – Beer, Spirits & Wine Pty Ltd was valid and lawful, and the union had the requisite standing to conduct the ballot. The Commission ruled that the union's actions were in compliance with the Fair Work Act, and the ballot process was fair and adequate. The decision reinforced the importance of following statutory procedures in organising and conducting protected industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Lion - Beer, Spirits & Wine 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