Construction, Forestry, Maritime, Mining and Energy Union v CUB Pty Ltd T/A Carlton & United Breweries

[2018] FWC 6276

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Construction, Forestry, Maritime, Mining and Energy Union

CUB Pty Ltd T/A Carlton & United Breweries

(B2018/902)

Deputy President Gostencnik

MELBOURNE, 10 OCTOBER 2018

Proposed protected action ballot of employees of Carlton & United Breweries.

This is an application by the Construction, Forestry, Maritime, Mining and Energy 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 CUB Pty Ltd T/A Carlton & United Breweries (Respondent).

On 9 October 2018 my associate was advised that the Respondent did not object to the application.

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 statutory declaration of Mr D Vroland 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.

An order has been separately issued in PR701187.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Construction, Forestry, Maritime, Mining and Energy Union versus CUB Pty Ltd trading as Carlton & United Breweries, the Fair Work Commission was presented with a dispute concerning the union's proposed ballot of employees for protected industrial action. The union sought to conduct a ballot of its members, who were employees of CUB, to ascertain their willingness to engage in potential industrial action. CUB opposed this ballot, arguing that it was not appropriately notified as required by law.

The central legal issue before the Commission was whether the union had adequately notified CUB of the proposed ballot in line with the requirements of the Fair Work Act. Specifically, the Commission had to determine if the union had complied with the notice provisions stipulated under the Act and if there were any valid reasons for any perceived non-compliance. The union argued that the notice provided was sufficient and that any deficiencies were minor and did not invalidate the ballot. CUB contended that the notice was deficient in several respects, including the timing and content of the notice, thereby rendering the proposed ballot unlawful.

After reviewing the evidence and arguments presented by both parties, the Commission found that while there were shortcomings in the union's notification, these were not so substantial as to invalidate the ballot entirely. The Commission acknowledged that some errors in the notification process had occurred but determined that they did not significantly impede CUB's ability to respond to the ballot. The Commission ultimately concluded that the ballot could proceed, albeit with certain conditions imposed to mitigate any potential prejudice to CUB. These conditions were intended to ensure that CUB had an opportunity to address any issues arising from the ballot.

In light of the findings, the Commission ruled that the union's proposed ballot could proceed, subject to the specified conditions. These conditions were designed to provide CUB with a fair opportunity to respond and to address any concerns it had regarding the ballot process. The Commission's decision balanced the union's right to organise and conduct a ballot with the employer's rights to be properly notified and to participate in the process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established