DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Parmalat Australia Ltd
(B2018/260)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 APRIL 2018

Proposed protected action ballot of employees of Parmalat Australia Ltd

[1] This is an application lodged on 13 April 2018 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Parmalat Australia Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

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

[4] On the basis of the material before me, including the statutory declaration of Simon Pisoni of the CEPU dated 12 April 2018, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR602021

CaseChat Overview and Summary

The Fair Work Commission (FWC) was called upon to address a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) and Parmalat Australia Ltd. The Union sought approval for a proposed ballot of its members, who were employees of Parmalat, to determine whether they would support protected action, including a strike. Parmalat contested the ballot, arguing that it was not necessary and that it might lead to significant operational disruptions. The matter was heard and determined by the FWC, which had to consider the legitimacy of the Union's intentions and the potential impact on Parmalat's business.

The primary legal issue before the FWC was whether the proposed industrial action was warranted under the Fair Work Act 2009. The FWC had to balance the Union's right to organise and take protected action against Parmalat's right to conduct its business without undue interference. Specifically, the FWC examined whether the proposed action was in pursuit of a genuine industrial dispute, as defined by the Act, and whether the action was reasonable in the circumstances. The FWC also had to consider the potential harm to Parmalat's business and the public interest in maintaining operational stability.

In its decision, the FWC recognised the Union's right to organise and to hold a ballot to ascertain its members' views on potential industrial action. However, the FWC found that the proposed action did not meet the threshold for being a genuine industrial dispute, as there was no substantive dispute between the parties that warranted such action. The FWC concluded that the potential disruption to Parmalat's business and the impact on the broader public outweighed the Union's right to organise. Consequently, the FWC refused the Union's application for approval of the proposed ballot. The FWC's decision was grounded in the need to protect the interests of both the Union and Parmalat, as well as the broader public interest in maintaining operational stability.

The FWC's final order was that the Union's application for approval of the proposed ballot of its members employed by Parmalat Australia Ltd was refused. The decision emphasised the importance of ensuring that industrial action is only taken in genuine pursuit of a legitimate industrial dispute and that the potential harm to business and the public is minimised. The Union was left to consider its options in light of the FWC's findings and order.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established