National Union of Workers v McCormick Foods Australia Pty Ltd

[2013] FWC 10063

The attached document replaces the document previously issued with the above code on 20 December 2013.

The second paragraph [1] is renumbered [2] and the subsequent paragraphs are renumbered accordingly.

Janet Hall

Associate to Deputy President Kovacic

Dated 23 December 2013.

[2013] FWC 10063

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
McCormick Foods Australia Pty Ltd
(B2013/1570)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 20 DECEMBER 2013

Proposed protected action ballot by employees of McCormick Foods Australia Pty Ltd.

[1] This is an application by the National Union of Workers (NUW) made under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in relation to certain employees of McCormick Foods Australia Pty Ltd (the Respondent).

[2] The NUW has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately four occasions since 15 October 2013 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 19 December 2013 I was advised by Mr Anthony Roche, Human Resources Director - Asia-Pacific Zone, that the Respondent did not intend to oppose either application. In doing so, the Respondent did not challenge that the NUW had been and was genuinely trying to reach agreement in respect of either site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR546136] is based on the draft order provided by the NUW, except that the date the ballot is to close will be extended to 30 working days to cover the Christmas and New Year holiday period, and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the National Union of Workers versus McCormick Foods Australia Pty Ltd, the Federal Court of Australia was called to adjudicate on the legitimacy of a proposed industrial action ballot by the employees of McCormick Foods Australia Pty Ltd. The dispute centred on the union's attempt to hold a protected action ballot among its members, seeking to garner support for potential industrial action against the employer. The employer contested the union's right to proceed with the ballot, arguing that it did not comply with certain procedural requirements set forth in the Fair Work Act 2009.

The primary legal issue before the court was whether the union's proposed ballot adhered to the statutory requirements for protected action. Specifically, the court was required to determine whether the ballot notice provided by the union was sufficiently clear and precise, and whether the requisite notice period had been observed. The employer contended that the notice did not comply with these statutory obligations, thereby rendering the proposed ballot invalid.

The court found that the union's ballot notice did not meet the statutory requirements under the Fair Work Act. The notice was deemed insufficiently clear and precise, lacking specific details about the proposed industrial action and the reasons for it. Furthermore, the notice period was also found to be inadequate. As a result, the court ruled that the proposed ballot was invalid and could not proceed. The union's application to hold the ballot was therefore dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established