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

[2019] FWC 1503

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

Nestle Australia Ltd

(B2019/193)

Deputy President Gostencnik

MELBOURNE, 7 MARCH 2019

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 (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 Ltd (Respondent).

On 7 March 2019, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr N Jenkins 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 PR705623.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court of Australia was presented with a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Nestle Australia Limited. The union sought to conduct a protected action ballot among Nestle employees to determine if they wished to engage in industrial action. Nestle opposed the ballot on the grounds that it was not appropriately timed and did not sufficiently consider the impact on the company's operations.

The central legal issues before the Court were whether the union's proposed ballot complied with the relevant legislative provisions concerning protected actions and whether it was conducted in good faith. Specifically, the Court needed to determine if the ballot's timing was appropriate, whether it adequately balanced the employees' right to engage in industrial action with the company's operational interests, and if the union had acted in good faith throughout the process.

In its reasoning, the Court held that the union's proposed ballot did not adequately consider the company's operational needs, particularly given the timing in relation to the company's financial reporting obligations. The Court found that the union had not demonstrated a sufficient understanding or consideration of the potential impact on Nestle's operations, which was a critical factor in determining the appropriateness of the ballot. Consequently, the Court ruled that the union's proposed ballot did not comply with the legislative requirements and was not in good faith. The Court consequently refused the union's application to conduct the ballot.

As a result of the Court's decision, the union's application to conduct a protected action ballot among Nestle employees was dismissed. The Court's ruling underscored the importance of balancing employees' rights to engage in industrial action with the legitimate operational needs of the employer, particularly in contexts where such actions could have significant repercussions on the company's activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established