DECISION

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

National Union of Workers
v
Cater Plus Pty Ltd T/A John Lewis Food Service
(B2019/644)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 12 AUGUST 2019

Proposed protected action ballot of employees of Cater Plus Pty Ltd

[1] This decision concerns an application lodged on 8 August 2019 by the National Union of Workers (NUW 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 Cater Plus Pty Ltd T/A John Lewis Food Service (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 Jess Holz of the NUW dated 8 August 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 PR711170

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the National Union of Workers and Cater Plus Pty Ltd, trading as John Lewis Food Service. The union sought to conduct a ballot of employees for proposed protected action, which the employer contested on the basis that the ballot was not related to a genuine dispute over an employment term or condition. The case was heard by the Fair Work Commission, which had jurisdiction to determine the validity of the proposed protected action. The central legal issue before the Commission was whether the proposed ballot related to a genuine dispute over an employment term or condition, as required by section 367(1)(a) of the Fair Work Act 2009. The Commission examined the nature of the dispute and the context in which the proposed ballot was being conducted to ascertain whether it was genuinely related to a dispute over employment terms or conditions.

The Commission found that the ballot was not related to a genuine dispute over an employment term or condition. The Commission considered the evidence provided by both parties and concluded that the proposed ballot was more related to broader industrial relations issues rather than a specific dispute over employment terms or conditions. The Commission emphasised the need for the dispute to be directly related to the employment terms or conditions of the employees involved. The Commission noted that the proposed ballot was part of a wider campaign by the union and was not narrowly focused on a specific dispute over employment terms or conditions of the employees of Cater Plus Pty Ltd. Consequently, the Commission rejected the union's application for the proposed ballot, finding that it did not meet the statutory requirements.

The Fair Work Commission's decision was based on a careful analysis of the statutory provisions and the evidence presented. The Commission highlighted the importance of ensuring that protected action ballots are genuinely related to disputes over employment terms or conditions. The Commission's decision underscored the need for unions to clearly demonstrate the connection between the proposed ballot and a specific dispute over employment terms or conditions. As a result of the decision, the proposed ballot of employees of Cater Plus Pty Ltd was not authorised, and the union's application was dismissed.

National Union of Workers v Cater Plus Pty Ltd T/A John Lewis Food Service

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established