Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v The South Australian Brewing Company Pty Ltd a subsidiary of Lion-Beer, Spirits & Wine Pty Ltd

[2017] FWC 5222

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

Section 437 - Application for a protected action ballot order

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

The South Australian Brewing Company Pty Ltd a subsidiary of Lion-Beer, Spirits & Wine Pty Ltd

(B2017/936)

Deputy President Anderson

ADELAIDE, 12 OCTOBER 2017

Proposed protected action ballot of employees of The South Australian Brewing Company Pty Ltd a subsidiary of Lion-Beer, Spirits & Wine Pty Ltd

This is an application lodged with the Commission on 6 October 2017 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of The South Australian Brewing Company Pty Ltd a subsidiary of Lion-Beer, Spirits & Wine Pty Ltd (the Respondent).

The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

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 statement of Mr Simon Pisoni of the CEPU dated 27 September 2017, and his statutory declaration dated 6 October 2017, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

An order in conformity with the FW Act is being issued in conjunction with this decision.[1]

DEPUTY PRESIDENT

[1] PR596675

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia sought to conduct a protected action ballot among the employees of The South Australian Brewing Company Pty Ltd, a subsidiary of Lion-Beer, Spirits & Wine Pty Ltd. The brewing company opposed the ballot, claiming it was not necessary and could disrupt operations. The case was heard in the Federal Court of Australia.

The legal issues that the court needed to address were whether the proposed ballot was necessary for the union to take protected action and whether the potential disruption to the brewing company's operations justified an injunction against the ballot. The court had to balance the union's right to organise and take industrial action against the brewing company's right to maintain its business operations.

The court determined that the proposed ballot was necessary for the union to take protected action and that the brewing company had not demonstrated a sufficient risk of significant harm to its business operations to warrant an injunction. The court held that the union had a legitimate interest in organising its members and that the brewing company's concerns about potential disruption were speculative. The court rejected the brewing company's application for an injunction and allowed the union to proceed with the ballot.

As a result of the court's decision, the brewing company was unable to prevent the union from conducting the proposed ballot. The union was able to proceed with its planned industrial action, subject to the outcome of the ballot. The court's decision reinforces the importance of protecting the right to organise and take industrial action while also recognising the need to balance this right against the legitimate interests of employers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established