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
McCain Foods (Aust) Pty Ltd
(B2016/687)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 JULY 2016

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd.

[1] This is an application by Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (the Respondent).

[2] On 7 July 2016 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 D King of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR582552.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to hold a protected action ballot among employees of McCain Foods (Aust) Pty Ltd. The dispute arose when McCain Foods challenged the union's authority to conduct the ballot. The case was heard in the Federal Court of Australia. The central issue before the court was whether the union had the right to hold a protected action ballot among the employees of McCain Foods. Specifically, the court had to determine if the union had the necessary support of the employees to conduct the ballot, as required by section 170CB of the Fair Work Act 2009.

The court examined the documentation provided by the union to establish the requisite support from the employees. The union argued that it had received a sufficient number of signed authorisations from the employees to hold the ballot. McCain Foods, however, contested the validity of the authorisations, claiming they did not meet the legal requirements. The court found that the union had failed to provide adequate evidence to demonstrate that it had the necessary support from the employees. Consequently, the court ruled that the union did not have the authority to hold the protected action ballot.

As a result of the court's decision, the union was not permitted to proceed with the ballot. The court's judgment effectively ended the union's attempt to hold the protected action ballot among the employees of McCain Foods. This decision underscored the importance of ensuring that unions adhere to the legal requirements when seeking to organise such actions. The court's ruling was a definitive outcome, providing clarity to both the union and the employer regarding the conditions necessary for holding a protected action ballot.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v McCain Foods (Aust) 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