DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Mayne Pharma International Pty Ltd
(B2019/411)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 24 MAY 2019

Proposed protected action ballot of employees of Mayne Pharma International 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 Mayne Pharma International Pty Ltd (Respondent).

[2] On 24 May 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Simon Pisoni 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 PR708667.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was called upon to determine the legality of a proposed industrial action ballot by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) against Mayne Pharma International Pty Ltd (the Employer). The Union sought to conduct a ballot to authorise potential industrial action by its members, employees of the Employer, in relation to their employment conditions. The Employer contested the validity of the ballot on the grounds that it did not comply with the necessary requirements under the Fair Work Act 2009.

The legal issues before the FWC involved the interpretation and application of the provisions of the Fair Work Act, specifically those relating to the authorisation of industrial action through a ballot. The FWC had to determine whether the Union's proposed ballot adhered to the statutory requirements and whether it was lawful to proceed with the ballot as planned. This included an examination of whether the ballot notice provided adequate information to the employees, whether the ballot was conducted in good faith, and whether the Union had followed the correct procedural steps as outlined in the legislation.

The FWC found that the Union's proposed ballot did not comply with the statutory requirements for several reasons. Firstly, the ballot notice did not adequately inform the employees of the full scope of the proposed industrial action, which was a critical aspect of the legislative requirements. Secondly, the Union failed to provide the Employer with the necessary information to allow for meaningful consultation, as mandated by the Act. Consequently, the FWC ruled that the proposed ballot was unlawful and could not proceed as planned. The FWC emphasised the importance of compliance with the statutory requirements to ensure that all parties are appropriately informed and able to engage in meaningful discussions regarding the proposed industrial action.

The FWC's decision was clear in that the Union's proposed ballot was unlawful and could not proceed. The FWC's ruling highlighted the importance of adhering to the statutory requirements for conducting a lawful ballot and the need for unions and employers to engage in good faith consultation to resolve any employment-related disputes.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Mayne Pharma International 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