Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Smith's Snackfood Company Pty Limited Summary

[2023] FWC 2426

FAIR WORK COMMISSION

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

The Smith's Snackfood Company Pty Limited

(B2023/1006)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 SEPTEMBER 2023

Proposed protected action ballot of employees of The Smith's Snackfood Company Pty Limited

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of The Smith’s Snackfood Company Pty Limited (Smith’s or Employer).

I observe that there is a related application by the Australian Workers’ Union (AWU) in B2023/1000. Both applications relate to the same proposed enterprise agreement.

On 20 September 2023, the Commission was advised that Smith’s did not, in effect, object to the Application.

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

On the basis of the material before me, including the declaration of Mr Scott Reichman, Organiser, setting out the steps taken by the CEPU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Smith’s, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Democratic Outcomes Pty Ltd T/A CiVS (CiVS). CiVS has been approved as an eligible protected action ballot agent under s 468A of the Act[1] and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 4 October 2023.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR766414.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with related matter B2023/1000. To the extent that this matter involves any additional bargaining representatives, the Commission will also issue the Order requiring their attendance at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] Democratic Outcomes Pty Ltd T/A CiVS [2023] FWC 1400

[2] This is, in effect, seven (7) days from the Commencement Date of the Ballot, as sought in the proposed order. It also coincides with the ballot period for the related matter which is desirable given the common s.448A conference(s) involved.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has dealt with an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) for a protected action ballot order concerning certain employees of The Smith’s Snackfood Company Pty Limited (Smith’s). The CEPU sought to conduct a ballot to determine if employees were in favour of protected action in relation to a proposed enterprise agreement. The application was made under section 437 of the Fair Work Act 2009. Smith’s did not object to the application, resulting in the Commission determining the matter on the papers without a hearing.

The legal issues before the Commission included whether the notification time for the proposed agreement had been met and whether all requirements under section 443(1) of the Act had been fulfilled. The CEPU submitted a declaration by Mr Scott Reichman, an Organiser, stating that the union had been genuinely trying to reach an agreement with Smith’s. The Commission was satisfied that the notification time was in effect and that all procedural requirements were met. Additionally, the Commission approved the use of Democratic Outcomes Pty Ltd T/A CiVS (CiVS) as the ballot agent, confirming its eligibility under section 468A of the Act.

The Deputy President determined that the voting for the ballot would close on 4 October 2023, which was seven days from the commencement date of the ballot, aligning with the ballot period for a related matter. This decision established the ballot period for the purposes of section 448A(2) of the Act. The matter was assigned to another Member of the Commission to conduct a compulsory conciliation conference, and orders were issued to ensure the parties attended ready to negotiate meaningfully. This decision was made in the context of a related application by the Australian Workers’ Union (AWU), B2023/1000, involving the same proposed enterprise agreement.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The Smith's Snackfood Company Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established