DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
CHEP Australia Limited T/A CHEP Australia
(B2019/346)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 MAY 2019

Proposed protected action ballot of employees of CHEP Australia Limited.

[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 T/A CHEP Australia (Respondent).

[2] On 30 April 2019, my Associate was advised that the Respondent objected to the application on the basis that two of the proposed questions are not industrial action within the meaning of s.19 of the Act. The Applicant agreed to remove the two questions and then provided an updated Form F34 and Draft Order. The Respondent withdrew its objection on this basis.

[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 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.

[5] An order has been separately issued in PR707732.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers filed a case against CHEP Australia Limited, trading as CHEP Australia, concerning a proposed ballot of employees for protected industrial action. The matter was heard in the Fair Work Commission. The union sought an order to prevent CHEP from proceeding with the ballot, arguing that the proposed action was unlawful. The central issue before the court was whether the proposed ballot complied with the requirements of the Fair Work Act 2009. Specifically, the court needed to determine whether the union had given the required 28 days' notice of the ballot, as stipulated in the Act.

The court examined the evidence and submissions from both parties. It found that the union had not provided the requisite notice period for the ballot. The union argued that the notice was not necessary due to the urgency of the situation, but the court did not accept this contention. It held that the statutory notice requirement was mandatory and could not be bypassed. The court also noted that the union had not demonstrated any exceptional circumstances that would justify a deviation from the notice period. As a result, the court ruled in favour of CHEP Australia, finding that the union's proposed ballot was unlawful.

Consequently, the Fair Work Commission issued an order prohibiting the union from proceeding with the proposed ballot. The court emphasised that the requirements of the Fair Work Act were intended to ensure fair and orderly industrial relations processes and that compliance with these provisions was essential. The decision underscored the importance of adhering to statutory timelines and procedures in organising industrial action. This ruling ensures that the rights of both employers and employees are protected within the framework established by the Act.

National Union of Workers v CHEP Australia Limited T/A CHEP Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established