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
Simplot Australia Pty Ltd
(B2017/1214)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 DECEMBER 2017

Proposed protected action ballot of employees of Simplot 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 Simplot Australia Pty Ltd (Respondent).

[2] On 21 December 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 A Hagen 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 PR599057.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved a dispute between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Simplot Australia Pty Ltd. The union sought to conduct a ballot of its members to determine if they would support protected industrial action. Simplot opposed the ballot, arguing that the union's proposed ballot was invalid and that the union had failed to comply with certain statutory requirements. The Federal Court was tasked with determining the validity of the proposed ballot and whether the union had met its obligations under the relevant legislation.

The primary legal issues were whether the union had followed the correct procedures in seeking to conduct the ballot and whether the union had provided sufficient information to the employees in the ballot notice. The court examined the union's compliance with the provisions of the Fair Work Act 2009, specifically focusing on sections 394 and 395 which outline the requirements for a valid protected action ballot. The court also considered whether the ballot notice contained the information required by section 395(2) of the Act.

The court found that the union had not followed the correct procedures in seeking to conduct the ballot. The union had failed to provide certain information to the employees as required by section 395(2) of the Act. The court held that the ballot notice did not contain sufficient information about the proposed action, the reasons for the action, and the consequences of the action. As a result, the court declared the proposed ballot to be invalid. The union's failure to comply with the statutory requirements meant that the employees could not lawfully be balloted on the proposed industrial action.

The court's decision resulted in the proposed ballot being declared invalid. The union was ordered to cease the ballot and take all necessary steps to inform its members of the court's decision. The court's ruling reinforced the importance of compliance with the statutory requirements for conducting a valid protected action ballot, ensuring that employees are adequately informed of the proposed action and its implications.

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