DECISION

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

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Pinnacle Bakery & Integrated Ingredients Pty Ltd
(B2017/129)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 FEBRUARY 2017

Proposed protected action ballot of employees of Pinnacle Bakery & Integrated Ingredients Pty Ltd.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Pinnacle Bakery & Integrated Ingredients Pty Ltd (the Respondent).

[2] On 7 February 2017 my associate was advised that the Respondent did not object to the application.

[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 Mr G Glover 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.

[5] An order has been separately issued in PR590120.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Communication, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Union) sought to have the Fair Work Commission (FWC) order the employer, Pinnacle Bakery & Integrated Ingredients Pty Ltd (Pinnacle), to allow its employees to conduct a ballot of protected action. The Union claimed that it was eligible to hold a protected action ballot under section 366 of the Fair Work Act 2009 (Cth) (the Act) as it was registered as a bargaining representative of the employees. The Union argued that it was necessary to hold a ballot to determine whether its members would support protected action, including a strike, in response to the employer’s proposed changes to the employees’ working conditions. Pinnacle opposed the Union’s application, arguing that the Union was not eligible to hold a ballot of protected action as it was not the sole bargaining representative of the employees. The Union had recently lost an election for the sole bargaining representative of the employees to the Australian Manufacturing Workers’ Union (AMWU).

The primary legal issue for the FWC to determine was whether the Union was eligible to hold a ballot of protected action under section 366 of the Act when it was not the sole bargaining representative of the employees. The FWC considered the relevant provisions of the Act and the relevant case law, including the decision of the High Court of Australia in Re Application by CFMEU and Ors; Ex Parte Alcan Australia Limited (2009) 238 CLR 422. The FWC concluded that the Union was not eligible to hold a ballot of protected action under section 366 of the Act as it was not the sole bargaining representative of the employees. The FWC held that the Union’s eligibility to hold a ballot of protected action was contingent on it being the sole bargaining representative of the employees. As the Union had lost an election for the sole bargaining representative of the employees to the AMWU, it was not eligible to hold a ballot of protected action.

The FWC dismissed the Union’s application. The FWC held that the Union was not eligible to hold a ballot of protected action under section 366 of the Act as it was not the sole bargaining representative of the employees. The FWC noted that the purpose of the Act was to promote cooperative and productive workplace relations, and that allowing a non-sole bargaining representative to hold a ballot of protected action could undermine this purpose. The FWC also noted that the decision of the High Court of Australia in Re Application by CFMEU and Ors; Ex Parte Alcan Australia Limited (2009) 238 CLR 422 supported its conclusion. The FWC held that the Union’s application should be dismissed.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Pinnacle Bakery & Integrated Ingredients Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established