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

[2022] FWC 2121

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
v

Nestlé Australia Ltd

(B2022/1199)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 AUGUST 2022

Proposed protected action ballot of employees of Nestlé Australia Ltd

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 Nestlé Australia Ltd (the Respondent).

On 10 August 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 Mr Nicholas McCubbin 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 PR744666.

DEPUTY PRESIDENT

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 (the Applicant) under section 437 of the Fair Work Act 2009. The Applicant sought a protected action ballot order in relation to certain employees of Nestlé Australia Ltd (the Respondent). The Respondent did not object to the application, leading the Deputy President to decide on the matter based on the documents submitted without the need for a hearing.

The legal issues before the court involved verifying whether the Applicant had fulfilled the prerequisites for a protected action ballot as outlined in section 443(1) of the Fair Work Act 2009. This included determining if there was a notification period for the proposed agreement and whether the Applicant had genuinely attempted to reach an agreement with the Respondent. The Applicant provided a declaration from Mr Nicholas McCubbin, detailing the steps taken during the bargaining process and affirming their genuine efforts to reach an agreement.

The Deputy President, upon reviewing the submitted material, concluded that the notification period existed and that the Applicant had met the requirements as per section 443(1) of the Fair Work Act 2009. Consequently, the application was approved. The decision also referenced an order issued separately in PR744666.

The final orders were issued to facilitate the protected action ballot, reflecting the Deputy President's findings. The decision was printed under the authority of the Commonwealth Government Printer, marking the official record of the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established