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

[2025] FWC 276

[2025] FWC 276

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

(B2025/192)

DEPUTY PRESIDENT HAMPTON ADELAIDE, 31 JANUARY 2025

Proposed protected action ballot of employees of Nestle Australia Limited

1. This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia acting through its Electrical Trades Union Division (CEPU - ETU 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).

1. 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 – Plumbing Division[2] have made separate applications for a protected action ballot order in relation to the same proposed enterprise agreement.

1. On 30 January 2025, the Commission was advised that the Employer, in effect, did not object to the Application as amended.

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

1. On the basis of the material before me, including the declaration of Kelvin Reidy, Legal Assistant, setting out the steps taken by the CEPU - ETU 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.

1. 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.

1. 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.

1. I observe that the application and draft order provided in this matter contained certain observations about the CEPU - ETU’s preference in relation to the updating and finalisation of the list of voters. These were not in a form suitable for inclusion in the Order and contradicted some of the other proposed provisions. In that light, I have issued the Order using the Commission’s standard approach, noting that this is also consistent with the related matters and the role to be played by the Act and associated regulations on the conduct of the ballot. I also observe that the Ballot Agent may have regard to the proposals set out in the application to the extent that they are consistent with the Order and the proper conduct of a ballot of this kind.

1. An Order has been separately issued in PR783850.

1. 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 if the protected action ballot order is ultimately granted in those 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] B2025/198.

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

Printed by authority of the Commonwealth Government Printer

< PR783856>