DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Saputo Dairy Australia Pty Ltd
(B2021/392)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 JUNE 2021

Proposed protected action ballot of employees of Saputo Dairy Australia 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 (Act) for a protected action ballot order in relation to certain employees of Saputo Dairy Australia Pty Ltd (Respondent).

[2] On 4 June 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Michael Anderson 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 PR730488.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia against Saputo Dairy Australia Pty Ltd regarding a proposed industrial action ballot. The union sought to hold a protected action ballot of employees, which was opposed by the employer on the basis that the ballot notice was invalid. The matter was heard by a delegate of the Commission in Sydney.

The key issue before the Commission was whether the ballot notice complied with the relevant provisions of the Fair Work Act 2009. Specifically, the employer argued that the ballot notice was invalid because it did not specify the period for which the proposed protected action could be taken, as required by section 317 of the Act. The union contended that the notice was valid, as it provided sufficient detail to enable employees to make an informed decision about participating in the ballot.

In determining the matter, the Commission considered the provisions of the Fair Work Act and relevant case law. The Commission found that the ballot notice was indeed invalid as it did not specify the period for which the proposed protected action could be taken. The Commission noted that the failure to specify this period meant that employees could not be fully informed about the potential consequences of participating in the ballot. As such, the Commission declined to authorise the ballot, finding that it was invalid.

The Fair Work Commission declined to authorise the proposed protected action ballot, finding that the ballot notice was invalid as it did not specify the period for which the proposed protected action could be taken. The Commission's decision brings to the fore the importance of ensuring that ballot notices comply with the statutory requirements, to enable employees to make informed decisions about participating in industrial action.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Saputo Dairy Australia 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