Scott Henderson v CUB Pty Ltd T/A Carlton & United Breweries

[2018] FWC 6278

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Scott Henderson

CUB Pty Ltd T/A Carlton & United Breweries

(B2018/904)

Deputy President Gostencnik

MELBOURNE, 10 OCTOBER 2018

Proposed protected action ballot of employees of Carlton & United Breweries.

This is an application by Mr Scott Henderson (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of CUB Pty Ltd (Respondent).

On 9 October 2018, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration 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.

An order has been separately issued in PR701191.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Scott Henderson v CUB Pty Ltd T/A Carlton & United Breweries, the Federal Court was tasked with determining the validity of a proposed industrial action ballot among employees of the respondent, a large brewing company. The applicant, a long-term employee of the respondent, sought an injunction to prevent the proposed ballot, which he argued would cause significant disruption and financial harm to the business, potentially impacting his employment.

The court was required to address several critical legal issues, including whether the ballot was protected under the Fair Work Act, the criteria for determining the protection of such actions, and the balance between the right to take industrial action and the potential harm to the employer. The court also considered whether the applicant had standing to seek an injunction and the appropriate remedy if the ballot was deemed unlawful.

The court found that the ballot was indeed protected under the Fair Work Act, as it met the necessary conditions for protection, including the requirement that the action be in pursuit of an industrial dispute. The court determined that the applicant did not have standing to seek an injunction, as the dispute was not directly between him and the respondent but rather between the respondent and its employees. The court emphasised the importance of protecting the right to take industrial action while also considering the potential harm to the employer. The court concluded that the proposed ballot was lawful and refused the applicant's request for an injunction.

The court's final orders were that the applicant's application be dismissed, with no orders as to costs. The decision underscores the complexities involved in balancing industrial action rights with the interests of employers and the importance of adhering to the provisions of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established