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

[2022] FWC 2108

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

Nestle Australia Ltd

(B2022/1198)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 AUGUST 2022

Proposed protected action ballot of employees of Nestle Australia Ltd.

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (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 9 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 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 PR744623.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers’ Union (AMWU), which applied for a protected action ballot order concerning certain employees of Nestlé Australia Ltd. The application was made under section 437 of the Fair Work Act 2009. The AMWU sought the order to facilitate a ballot among the employees regarding potential protected action. Nestlé Australia Ltd did not object to the application, leading the Deputy President to proceed with the matter on the provided documents without the need for a hearing.

The central legal issue in this case was whether the AMWU had fulfilled the necessary requirements to conduct a protected action ballot. Specifically, the Commission had to determine if there was a notification period in relation to the proposed agreement and whether the conditions set out in section 443(1) of the Fair Work Act had been satisfied. The AMWU claimed to have genuinely attempted to reach an agreement with Nestlé Australia Ltd and provided evidence of its bargaining efforts through a declaration by Ms Chelsea Hill.

After reviewing the material presented, including the declaration and the AMWU's bargaining efforts, the Deputy President concluded that the AMWU had met the statutory requirements for a protected action ballot. The Commission found that a notification period was in effect and that all conditions under section 443(1) of the Act were fulfilled. Consequently, the application for the ballot order was granted, and an order was issued separately in PR744623. This decision allowed the AMWU to proceed with the ballot among the employees of Nestlé Australia Ltd as planned.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established