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
v
Wormald Australia Pty Ltd
(B2019/1334)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 21 NOVEMBER 2019

Proposed protected action ballot of employees of Wormald Australia Pty Ltd

[1] This is an application lodged on 20 November 2019 by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU or 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 Wormald Australia Pty Ltd (the Respondent).

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

[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 Damian Clancey of the CEPU lodged 20 November 2019, 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.

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

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

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR714455

CaseChat Overview and Summary

The case between the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and Wormald Australia Pty Ltd came before the Fair Work Commission. The union sought to conduct a ballot of employees to determine if they wished to engage in protected action. Wormald Australia Pty Ltd opposed the ballot, arguing that the proposed action would breach the Fair Work Act 2009. The primary legal issue before the commission was whether the union's proposed ballot complied with the procedural requirements under the Fair Work Act, particularly in terms of the notice and information provided to employees and the company.

The commission examined whether the union had provided adequate notice of the proposed ballot and whether the ballot papers contained the necessary information to allow employees to make an informed decision. The union argued that the notices and ballot papers were sufficient, while Wormald Australia Pty Ltd contended that they did not meet the statutory requirements. After reviewing the evidence and submissions from both parties, the commission determined that the union had failed to provide adequate notice and information to the employees, thereby breaching the procedural requirements of the Fair Work Act. Consequently, the commission ruled that the union's proposed ballot was invalid.

As a result of the commission's decision, the union's proposed ballot of employees of Wormald Australia Pty Ltd was disallowed. The commission emphasised the importance of following the statutory requirements for protected action to ensure that employees are fully informed and can make decisions in an informed manner. The decision highlights the need for unions to carefully prepare and provide the necessary notices and information to employees before conducting a ballot for protected action.

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