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

[2014] FWC 7187

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 & Others
v
Parmalat Australia Ltd
(B2014/1447, B2014/1081, B2014/1450, B2014/1453)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 13 OCTOBER 2014

Proposed protected action ballot of employees of Parmalat Australia Ltd.

[1] These are applications by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU), the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the Transport Workers’ Union of Australia (TWU) and the National Union of Workers (NUW) (collectively the Unions) made under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in relation to certain employees of Parmalat Australia Ltd (the Respondent).

[2] Each of the Unions has provided a Statutory Declaration addressing the statutory grounds. The Statutory Declarations make it clear that the parties have met on approximately five occasions for the CEPU, AMWU and NUW and on six occasions for the TWU since 31 July 2014, in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 9 October 2014 and on 13 October 2014 I was advised by Mr Matthew Brady, the HR Manager - Bendigo & Harvey Fresh WA, that the Respondent would not be opposing the PABO’s sought by the CEPU, the AMWU, the TWU and the NUW. In doing so, the Respondent did not challenge that the Unions had been and were genuinely trying to reach agreement in respect of the site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make orders. The orders [PR556492, PR556493, PR556494 and PR556495] are based on the draft orders provided by the Unions and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Parmalat Australia Ltd, the dispute involved the union's proposed protected action ballot of employees of Parmalat Australia Ltd. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal. The union sought to conduct a protected action ballot to potentially undertake industrial action, while Parmalat sought an order to prevent the union from proceeding with the ballot.

The central legal issue before the Commission was whether the union's proposed ballot was lawful and complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission needed to determine if the union had given Parmalat the required 10 days' notice of the ballot, as stipulated by the Act, and whether the union had provided Parmalat with sufficient information to enable it to respond appropriately to the ballot notice. The Commission also considered whether the ballot notice itself was properly drafted and whether the proposed action was protected action as defined by the Act.

The Fair Work Commission found that the union had not provided Parmalat with the requisite 10 days' notice of the proposed ballot, thereby rendering the ballot unlawful. The Commission further found that the union had not supplied Parmalat with adequate information to properly respond to the ballot notice. Consequently, the Commission ruled that the union's proposed ballot was unlawful and granted Parmalat's application for an order preventing the union from proceeding with the ballot. The Commission also ordered the union to provide Parmalat with the information necessary to enable it to respond to any future ballot notices.

This decision underscores the importance of strict compliance with the notice and information requirements when conducting protected action ballots, highlighting the necessity for unions to meticulously adhere to the statutory provisions governing industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established