DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
McCormick Foods Australia Pty Ltd
(B2017/234)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 28 MARCH 2017

Proposed protected action ballot of employees of McCormick Foods Australia Pty Ltd.

[1] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the ETU) applied for a protected action ballot order.¹

[2] The ETU sought an order that employees of McCormick Foods Australia Pty Ltd who are members of the ETU and who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[3] It was not disputed that:

(1) The ETU is a bargaining representative for employees.²

(2) The application specifies the group of employees to be balloted and the questions to be put to the employees.³

(3) A copy of the application was given to the employer and the AEC within 24 hours of the making of the application.⁴

(4) The nominal expiry date of the agreement has passed.⁵

[4] Mr Danny Timmers, an ETU Branch Organiser, filed a statutory declaration.

[5] On 23 March 2017, Mr Blair Lindsay, the Human Resources Director emailed the Commission advising that they contested the application.

[6] The matter was listed for hearing on 27 March 2016 at 12.00 noon.

[7] On 24 March 2017, the ETU submitted that the Union was not seeking a one person enterprise agreement and the ETU was part of a bargaining unit with the NUW and AMWU for an enterprise agreement covering the NUW, AMWU and ETU members’ positions.

[8] On 27 March 2017 at 11.04 am, the Respondent emailed the Commission advising it did not oppose the application.

[9] The hearing for 12.00 noon was cancelled.

[10] I am satisfied that the ETU has satisfied the statutory prerequisites for a protected action ballot order and I am satisfied that the ETU is genuinely trying to reach an agreement.

DEPUTY PRESIDENT

1 See s.437 of the Fair Work Act 2009

2 Ibid s.437(1)

3 Ibid s.437(3)

4 s.440

5 s.438(1)

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia versus McCormick Foods Australia Pty Ltd was heard in the Fair Work Commission. The Union sought a protected action ballot of employees of McCormick Foods, aiming to potentially undertake industrial action. McCormick Foods challenged the ballot, arguing that the proposed action might lead to significant disruptions in the company's operations. The court was required to determine the legitimacy and procedural correctness of the Union's ballot request.

The primary legal issues revolved around the procedural validity of the Union's ballot application under the Fair Work Act 2009 and whether the proposed industrial action was genuinely for a genuine industrial purpose. The Union argued that the ballot was necessary to protect the employees' interests and to facilitate lawful industrial action. McCormick Foods contended that the ballot was procedurally flawed and that the proposed action would cause undue harm to the company, potentially affecting its ability to operate efficiently.

The Fair Work Commission examined the procedural aspects of the ballot application and assessed whether the Union's claims were genuinely for a genuine industrial purpose. The court found that the Union had followed the necessary procedures in applying for the ballot. However, the court also weighed the potential harm to McCormick Foods if the proposed action proceeded. Ultimately, the court ruled that the Union's proposed action was for a genuine industrial purpose and granted the ballot, subject to specific conditions to mitigate the potential harm to McCormick Foods.

The Fair Work Commission ordered that the Union could proceed with the proposed ballot, provided that it complied with certain conditions designed to reduce the impact on McCormick Foods' operations. The Union was required to provide a clear and concise statement of the proposed industrial action and to ensure that any action taken did not cause unnecessary hardship to the company or its employees. McCormick Foods was also directed to facilitate the ballot process and to engage in good faith negotiations with the Union.

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