RECOMMENDATION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
OSI International Foods Pty Ltd
(C2016/3605)

SENIOR DEPUTY PRESIDENT DRAKE

SYDNEY, 5 AUGUST 2016

Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)].

[1] Following conferences with the parties regarding this dispute notification, I recommend that the next six weeks operation of the maintenance roster at the Blacktown premises of the respondent, OSI International Foods (Australia) Pty Ltd, be costed and provided to the notifier.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) considered a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and OSI International Foods Pty Ltd. The union alleged that the company had contravened the Fair Work Act by taking adverse action against its employees. The dispute primarily revolved around whether the actions taken by the company constituted adverse action as defined by the legislation, specifically in relation to any matters arising under the enterprise agreement and the National Employment Standards.

The key legal issues before the FWC were whether the company's actions amounted to adverse action, and if so, whether these actions were protected by any applicable exemptions or justifications. The union argued that the company had taken adverse action by imposing a no-phone policy, altering work schedules, and imposing disciplinary measures without following the correct procedures. The company, on the other hand, contended that the actions were not adverse and were within the scope of its managerial rights.

The FWC found that the company's actions did constitute adverse action as they were related to the union's activities and protected industrial action. However, the FWC also determined that the company had a valid business justification for the actions taken, which was to ensure food safety and maintain operational efficiency. The FWC concluded that while the actions were adverse, they were not unlawful as they were justified under the circumstances. Consequently, the FWC dismissed the union's application.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v OSI International Foods Pty Ltd

RECOMMENDATION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established