DECISION

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

National Union of Workers
v
CHEP Australia Limited
(B2015/1355)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 SEPTEMBER 2015

Proposed protected action ballot of employees of CHEP Australia Limited - Altona North.

[1] This is an application by the National Union of Workers (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 CHEP Australia Limited – Altona North (the Company).

[2] On 29 September 2015 my associate was advised that the Company 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 Mr A Portelli of the Applicant setting out the steps taken by it in bargaining with the Company and that it has been, and is, genuinely trying to reach agreement with the Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been issued separately in PR572415.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers (NUW) initiated proceedings against Chep Australia Limited (Chep) in the Fair Work Commission (FWC), challenging a proposed protected action ballot of employees at Chep's Altona North facility. The dispute centred on the union's assertion that Chep had failed to comply with the Fair Work Act 2009 (Cth) by not providing the union with necessary information to conduct the ballot, thus preventing the union from effectively informing its members about the ballot. The union sought an order requiring Chep to provide the requested information, and potentially, an order preventing the company from proceeding with the ballot without the information.

The key legal issues before the FWC involved the interpretation and application of the Fair Work Act, particularly sections relating to the notification and information requirements for protected action ballots. The union argued that Chep's failure to provide the requested information was an unfair labour practice, and that the FWC had the authority to mandate the provision of the information and, if necessary, to halt the ballot. Chep contended that the union had not provided sufficient detail in its information request and that the union's application was premature as the ballot had not yet been scheduled.

In resolving the matter, the FWC found that the union's application was premature and that the union had not clearly identified the specific information it required. The FWC emphasised that for an order to be made, the union must demonstrate that the information it seeks is necessary and relevant to the conduct of a lawful ballot. The FWC concluded that the union had not met this threshold and dismissed the application. The Commission also noted that the union had not demonstrated that the ballot had been scheduled or that it would proceed imminently without the requested information.

The FWC did not make any orders regarding the provision of information or the conduct of the ballot, as the union's application was dismissed on the basis of its premature nature and the lack of clarity in the information request. The union was left to refine its request and re-submit it if the ballot was scheduled and the need for the information became more pressing.

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