DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Construction, Forestry, Mining and Energy Union
v
Fonterra Australia Pty Ltd
(B2017/298)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 APRIL 2017

Proposed protected action ballot of employees of Fonterra Australia Limited.

[1] This is an application by the Construction, Forestry, Mining and Energy Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Fonterra Australia Pty Ltd (the Respondent).

[2] On 11 April 2017 my associate was advised that the Respondent did not object to the application.

[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 Ms A Swayn 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 PR591799.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Construction, Forestry, Mining and Energy Union v Fonterra Australia Pty Ltd, the Fair Work Commission was asked to determine whether the union's proposed protected action ballot was valid. The dispute centred around the employees of Fonterra Australia Limited, who were organised by the union and intended to participate in a ballot to decide on potential industrial action. The Fair Work Commission was the court tasked with examining the procedural fairness and validity of this ballot under the Fair Work Act 2009.

The primary legal issue before the court was whether the union had adhered to the statutory requirements for conducting a valid protected action ballot. This involved assessing whether the union had provided Fonterra with sufficient details about the proposed industrial action and whether Fonterra had been afforded a reasonable opportunity to respond to these details. The court needed to ensure that the union's actions complied with the procedural fairness standards mandated by the Fair Work Act, particularly in relation to the notification requirements and the right to respond.

In its decision, the Fair Work Commission found that the union had not provided Fonterra with all the necessary information regarding the proposed industrial action. The court emphasised that the union's failure to include certain details in its notification meant that Fonterra had not been given a fair opportunity to respond. Consequently, the commission ruled that the proposed ballot was invalid. The commission underscored the importance of strict compliance with the notification provisions to maintain procedural fairness and protect the rights of both the union and the employer.

The Fair Work Commission invalidated the proposed protected action ballot, ruling that it did not comply with the statutory requirements for procedural fairness. The commission highlighted that the union's omission of critical details in its notification to Fonterra rendered the process unfair. This decision serves as a reminder of the necessity for unions to meticulously adhere to the notification and response provisions outlined in the Fair Work Act to ensure valid industrial action ballots.

Construction, Forestry, Mining and Energy Union v Fonterra 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