Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sealed Air Australia Pty Limited T/A Sealed Air

[2018] FWC 6378

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

Sealed Air Australia Pty Limited T/A Sealed Air

(B2018/936)

Deputy President Gostencnik

SYDNEY, 15 OCTOBER 2018

Proposed protected action ballot of employees of Sealed Air Australia Pty Limited.

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 Sealed Air Australia Pty Limited (Respondent).

On 15 October 2018, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr N Jenkins 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.

An order has been separately issued in PR701328.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Sealed Air Australia Pty Limited T/A Sealed Air, the Fair Work Commission was tasked with determining whether the union's proposed industrial action could proceed. The union, representing employees of Sealed Air Australia, sought to conduct a protected action ballot in relation to various employment disputes. The employer, Sealed Air, contested the validity and scope of the proposed action, arguing that the ballot would result in significant disruption to its business operations.

The primary legal issue before the Commission was whether the union's proposed protected action was compliant with the relevant provisions of the Fair Work Act 2009. This included assessing whether the ballot notice provided to the employees was sufficiently clear and specific, and whether the proposed industrial action was related to a genuine dispute between the union and the employer. The Commission also needed to consider whether the proposed action was likely to cause substantial economic harm to the employer and its customers.

In its decision, the Commission determined that the union's proposed ballot notice did not meet the requirements of the Fair Work Act. The notice was found to be unclear and lacked sufficient detail regarding the nature and scope of the proposed industrial action. The Commission held that the union had not provided adequate information to enable employees to make an informed decision about participating in the ballot. As a result, the proposed protected action could not proceed. The Commission also noted that the proposed action would have caused significant economic harm to Sealed Air and its customers, further supporting its decision to disallow the ballot.

As a consequence of the Commission's decision, the union's proposed protected action ballot was prohibited from proceeding. The Commission's ruling emphasised the importance of clear and specific ballot notices in ensuring that employees are fully informed about the proposed industrial action and can make an informed decision. The decision serves as a reminder to unions to ensure that their ballot notices comply with the relevant legal requirements to avoid similar outcomes in future disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established