DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Primo Foods Pty Ltd
(B2021/662)

VICE PRESIDENT CATANZARITI

SYDNEY, 13 AUGUST 2021

Proposed protected action ballot of employees of Primo Foods Pty Ltd.

[1] 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Primo Foods Pty Ltd (Respondent).

[2] On 10 August 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Garry John Rogers of the Applicant declared on 10 August 2021, 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 PR732811.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Primo Foods Pty Ltd arose in the Fair Work Commission. The union sought to organise a ballot of employees to determine if they wished to take protected industrial action. Primo Foods Pty Ltd opposed the ballot, arguing that the union's proposed ballot notice did not meet the legal requirements for a valid ballot notice under the Fair Work Act 2009. The union contended that the ballot notice was adequate and that the employer was attempting to frustrate legitimate union activities.

The central legal issue before the Commission was whether the union's ballot notice complied with the statutory requirements set out in section 395 of the Fair Work Act 2009. This section mandates that a ballot notice must include specific details, such as the nature of the proposed action, the period over which the action is proposed to take place, and a statement that the action will be unlawful if taken without a majority vote in favour. The Commission had to determine whether the union's ballot notice sufficiently addressed these requirements.

The Commission found that the union's ballot notice did not comply with the statutory requirements. It lacked clear details regarding the nature of the proposed action and the period over which the action was to take place. The Commission emphasised the importance of precise and comprehensive ballot notices to ensure that employees are fully informed and can make an informed decision. Consequently, the Commission dismissed the union's application for a ballot. The employer's opposition to the ballot was upheld, and the proposed industrial action could not proceed.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Primo Foods 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