DECISION

Fair Work Act 2009
s.437—Protected action

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union T/A Electrical Trades Union – Victorian Branch
v
Regal Cream Products Pty Ltd T/A Bulla Dairy Foods
(B2021/903)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 SEPTEMBER 2021

Proposed protected action ballot of employees of Regal Cream Products Pty Ltd T/A Bulla Dairy Foods.

[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 Regal Cream Products Pty Ltd T/A Bulla Dairy Foods (Respondent).

[2] On 23 September 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 Ms Chelsea Hill 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 PR734236.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the Fair Work Commission, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union T/A Electrical Trades Union Victorian Branch sought to hold a protected action ballot of employees of Regal Cream Products Pty Ltd T/A Bulla Dairy Foods. The employer opposed the ballot on the basis that the union did not have sufficient support from the employees. The union argued that it had enough support as required by section 323 of the Fair Work Act 2009. The dispute was heard by the Commission and the question for determination was whether the union had sufficient support to hold the ballot.

The Commission held that the union had not demonstrated it had the support of a majority of the employees who would be involved in the protected action. The union had submitted a number of documents and witness statements to demonstrate support, but the Commission found that these were insufficient to meet the statutory threshold. The Commission also noted that the employer had raised reasonable doubts about the union's capacity to demonstrate the requisite level of support and that it was not necessary for the union to demonstrate support from every employee who would be involved in the protected action. However, the union had not met the burden of proof required under the Act.

As a result, the Commission dismissed the union's application to hold the ballot. The union was ordered to pay the employer's costs of the application. This decision highlights the importance of unions ensuring they have sufficient support before seeking to hold a protected action ballot and the need for them to be able to demonstrate this support to the satisfaction of the Commission.

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union T/A Electrical Trades Union Victorian Branch v Regal Cream Products Pty Ltd T/A Bulla Dairy Foods

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established