DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Simplot Australia Pty Limited
(B2021/260)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 APRIL 2021

Proposed protected action ballot of employees of Simplot Australia Pty Limited.

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

[2] On 15 April 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 Damian King 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 PR728691.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to review a proposed protected action ballot of employees of Simplot Australia Pty Limited. The union, Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, sought to conduct a ballot of its members employed by Simplot Australia Pty Limited to determine whether they supported protected action. Simplot Australia Pty Limited opposed the ballot on the basis that it was not related to the employees' conditions of employment. The Commission was required to determine whether the proposed ballot related to the employees' conditions of employment, and if so, whether it was an appropriate and proper way of conducting the ballot.

The Commission found that the proposed ballot related to the employees' conditions of employment. The union argued that the proposed ballot was necessary to determine the members' support for protected action in response to Simplot Australia Pty Limited's decision to terminate the employees' employment. The Commission accepted that the proposed ballot was related to the employees' conditions of employment as it was a response to a potential change in those conditions. The Commission also found that the proposed ballot was an appropriate and proper way of conducting the ballot as it complied with the relevant provisions of the Fair Work Act.

The Commission ordered that Simplot Australia Pty Limited allow the union to conduct the proposed ballot of its members. The Commission found that the proposed ballot was necessary to determine the members' support for protected action in response to Simplot Australia Pty Limited's decision to terminate the employees' employment. The Commission also found that the proposed ballot complied with the relevant provisions of the Fair Work Act and was an appropriate and proper way of conducting the ballot. The Commission ordered that Simplot Australia Pty Limited allow the union to conduct the proposed ballot of its members and provide the necessary facilities and access to employees to enable the union to conduct the ballot.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Simplot Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established