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

[2025] FWC 280

FAIR WORK COMMISSION

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

Nestle Australia Limited

(B2025/198)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 31 JANUARY 2025

Proposed protected action ballot of employees of Nestle Australia Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia acting through its Plumbing Division (CEPU – Plumbing Division or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Nestle Australia Limited (Nestle or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)[1] and the CEPU – Electrical Trades Union Division[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

On 31 January 2025, the Commission was advised that the Employer, in effect, did not object to the Application as amended.

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 Nicholas McCubbin, Organiser, setting out the steps taken by the CEPU – Plumbing Division in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Nestle, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by Vero Engagement & Voting Solutions Pty Ltd (Vero Voting). Vero Voting has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 14 February 2025.[3] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR783873.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] B2025/189

[2] B2025/192.

[3] This is, in effect, 10 working days from the making of the Order and was the specific date sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission received an application from the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, acting through its Plumbing Division, requesting a protected action ballot order regarding certain employees of Nestle Australia Limited. This application was made under section 437 of the Fair Work Act 2009. The union sought to conduct a ballot for potential industrial action in the context of negotiations for an enterprise agreement. Nestle did not object to the application, leading the Commission to decide the matter on the papers without a hearing.

The legal issues before the Commission involved verifying whether the union had genuinely attempted to reach an agreement with Nestle and whether the requirements under section 443(1) of the Act were satisfied. Additionally, the court had to determine the appropriate closing date for the ballot under section 443(3)(c) of the Act, which would also establish the ballot period under section 448A(2). The Commission's decision was based on the declaration of Nicholas McCubbin, Organiser of the union, who outlined the steps taken in bargaining with Nestle and confirmed the union's genuine efforts to reach an agreement. The Commission determined that all necessary requirements were met and set the closing date for voting as 14 February 2025.

The Deputy President concluded that the union had demonstrated its genuine efforts to negotiate an agreement with Nestle, and all statutory requirements for a protected action ballot had been met. The court authorised Vero Engagement & Voting Solutions Pty Ltd to conduct the ballot, as it is an approved agent under section 468A of the Act. The final orders included setting the closing date for the ballot and assigning another Member of the Commission to conduct the compulsory conciliation conference along with related matters, ensuring all bargaining representatives attended prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established