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
Regal Cream Products Pty Ltd T/A Bulla Dairy Foods
(B2017/568)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 JULY 2017

Proposed protected action ballot of employees of Regal Cream Products 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 Regal Cream Products Pty Ltd t/a Bulla Dairy Foods (the Respondent).

[2] On 6 July 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 T Knight 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 PR594404.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in this case involved the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, which sought to conduct a ballot of employees of Regal Cream Products Pty Ltd T/A Bulla Dairy Foods to determine if they would support protected action. The matter was heard in the Fair Work Commission. The central legal issues revolved around whether the union's proposed ballot met the statutory requirements under the Fair Work Act 2009, particularly concerning the form and content of the ballot notice, and if the ballot was conducted in a manner that complied with the procedural fairness owed to the employer.

The Fair Work Commission examined the union's ballot notice to determine if it contained all the required information, including the nature and purpose of the proposed action, the intended commencement date, and the duration of the action. The Commission also considered whether the union provided the employer with sufficient details to enable them to respond appropriately. The union argued that the ballot notice was adequate and that it had acted fairly and in good faith. Conversely, the employer contested that the notice was deficient and that the union had not given adequate consideration to the potential impact on the business.

In its decision, the Fair Work Commission found that the union's ballot notice was not in the required form as it did not specify the intended duration of the protected action. The Commission concluded that this omission meant the notice failed to comply with the statutory obligations. Additionally, the employer had not been given a reasonable opportunity to respond to the ballot, breaching the principle of procedural fairness. As a result, the Commission set aside the union's ballot, highlighting the importance of precise and comprehensive communication in industrial action processes.

The Fair Work Commission did not make any orders regarding the costs of the proceedings.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Regal Cream Products Pty Ltd T/A Bulla Dairy Foods

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established