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

[2022] FWC 3000

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

McCain Foods (Aust) Pty Ltd T/A McCain

(B2022/1701)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 NOVEMBER 2022

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

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 McCain Foods (Aust) Pty Ltd T/A McCain (Respondent).

On 11 November 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Chelsea Hill 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.

An order has been separately issued in PR747854.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) applied to the Fair Work Commission (the Commission) for an order permitting a protected action ballot of certain employees of McCain Foods (Aust) Pty Ltd T/A McCain (McCain). The Union sought to hold the ballot in relation to proposed changes to the employees' enterprise agreement. McCain did not object to the application, and the Commission proceeded to determine the matter on the papers.

The legal issue before the Commission was whether the Union had satisfied the requirements of the Fair Work Act 2009 (the Act) for an order permitting a protected action ballot. Specifically, the Commission was required to determine whether the Union had genuinely attempted to negotiate in good faith with McCain in relation to the proposed changes to the enterprise agreement. The Union provided a declaration from its representative, Ms Chelsea Hill, which set out the steps taken by the Union in bargaining with McCain and confirmed that it had been, and was, genuinely attempting to reach agreement with McCain.

The Commission was satisfied that the Union had satisfied the requirements of the Act for an order permitting a protected action ballot. The Commission found that the Union had genuinely attempted to negotiate in good faith with McCain and that there was a notification time in relation to the proposed changes to the enterprise agreement. The Commission noted that the Union had provided detailed evidence of its attempts to negotiate with McCain, including the provision of detailed written submissions and the holding of meetings with McCain's representatives. The Commission was satisfied that the Union had met its burden of proof in relation to the legal issue before it.

The Commission issued an order permitting the Union to hold a protected action ballot of the relevant employees. The order was issued under section 437 of the Act, which provides that the Commission may make an order permitting a protected action ballot where it is satisfied that certain conditions are met. The order is in addition to an order made in PR747854.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established