DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
CHEP Australia Limited
(B2019/408)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 MAY 2019

Proposed protected action ballot of employees of CHEP Australia Limited at Altona.

[1] This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of CHEP Australia Limited (Respondent).

[2] On 22 May 2019, my Associate was advised that the Respondent objected to the inclusion of questions 12 and 14 in the application/draft order on the basis that the actions in those questions are not industrial action within the meaning of s.19 of the Act.

[3] On 22 May 2019, the Applicant was asked to provide their views to the Respondent’s objection.

[4] On 23 May 2019, the Applicant advised that it was content for the order to be granted without including questions 12 and 14.

[5] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[6] On the basis of the material before me, including the statutory declaration of Mr Rowan Payne 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.

[7] An order has been separately issued in PR708615.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of National Union of Workers v Chep Australia Limited, the dispute arose between the union and the employer over the proposed protected action ballot of employees of CHEP Australia Limited at Altona. The Fair Work Commission was called upon to adjudicate the matter. The central legal issue before the Commission was whether the union's proposed protected action, which included a strike and work stoppage, complied with the statutory requirements under the Fair Work Act 2009.

The Commission examined the union's notification to the employer, focusing on the adequacy of the information provided regarding the nature and scope of the proposed action. It was essential to determine whether the notification sufficiently detailed the action to enable the employer to respond appropriately. The Commission also assessed whether the proposed action was in relation to a "work dispute" as defined by the Act, and whether it complied with the procedural requirements for protected industrial action.

The Fair Work Commission concluded that the union's notification was deficient in several respects, failing to adequately inform the employer of the specific details of the proposed action. Consequently, the Commission ruled that the proposed action did not comply with the statutory requirements and, as such, was not protected industrial action under the Act. The Commission's decision hinged on the necessity for clear and precise communication to the employer to facilitate meaningful engagement and to ensure that the employer could respond to the proposed action effectively. The union's failure to provide the requisite information rendered the notification insufficient, leading to the conclusion that the proposed action was unprotected.

The Commission did not grant the union's application for authorisation of the protected action and ordered that the proposed action be treated as unprotected industrial action. This decision underscores the importance of detailed and precise notification in the context of protected industrial action, reinforcing the need for unions to adhere strictly to the statutory requirements to ensure their actions are lawful.

National Union of Workers v Chep Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established