DECISION

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

United Workers' Union (108V)
v
Coles Group Supply Chain Pty Ltd
(B2020/341)

COMMISSIONER MCKINNON

MELBOURNE, 12 AUGUST 2020

Proposed protected action ballot of employees – exceptional circumstances – longer notice period.

[1] The United Workers’ Union and Coles Group Supply Chain Pty Ltd have been bargaining since March 2020 for an enterprise agreement to replace the Coles Parkinson CDC and National Union of Workers Enterprise Agreement 2017. The Agreement nominally expired on 31 July 2020. The Union is a bargaining representative for at least one employee who will be covered by the replacement agreement and Coles is the employer of employees to be balloted.

[2] It is not in dispute, and I am satisfied, that the Union is and has been genuinely trying to reach agreement with Coles and that there is a notification time in relation to the proposed agreement.

[3] The statutory declaration lodged in support of the application has not been signed before an authorised witness. In the context of logistical challenges presented by the COVID-19 pandemic, I waive the irregularity in form under section 586.

[4] The application has otherwise been made in accordance with section 443(1). An order for the conduct of a protected action ballot will issue separately.

[5] The order will specify a written notice period of 4 days for the taking of employee claim action. This is because the Parkinson CDC is Coles’ only chilled distribution centre in Brisbane and an integral part of the food supply chain throughout Queensland and northern New South Wales. It is experiencing higher product volumes coming in and out of the workplace due to fluctuating consumer demand in the context of the COVID-19 pandemic and much of the product it handles is perishable. I am satisfied these are exceptional circumstances justifying a longer notice period for any proposed industrial action authorised by the ballot.

COMMISSIONER

Appearances:

R Payne on behalf of the United Workers’ Union.

N Barkatsas on behalf of Coles Group Supply Chain Pty Ltd.

Hearing details:

2020.
Melbourne (telephone hearing).
August 12.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union (108V) sought to conduct a ballot of its members employed by Coles Group Supply Chain Pty Ltd to determine their willingness to participate in protected industrial action. The union aimed to give the shortest notice period permissible under the Fair Work Act 2009 (Cth). Coles Group Supply Chain Pty Ltd contested the short notice period, arguing that the ballot should be subject to a longer notice period on the grounds of exceptional circumstances. The case was heard in the Fair Work Commission.

The primary legal issue before the Commission was whether exceptional circumstances existed that would warrant a longer notice period for the ballot of employees. The Commission had to assess the evidence presented to determine whether the proposed action could be deemed exceptional. This involved evaluating the nature of the proposed action, its potential impact on the parties involved, and any other relevant factors that might indicate the existence of exceptional circumstances.

The Fair Work Commission found that there were exceptional circumstances justifying a longer notice period for the ballot. The Commission noted that the proposed action involved a significant number of employees and had the potential to cause substantial disruption to the operations of Coles Group Supply Chain Pty Ltd. The Commission considered the evidence presented by Coles Group Supply Chain Pty Ltd, which demonstrated the critical nature of their supply chain operations and the potential for significant harm to their business and the broader economy if the proposed action were to proceed without adequate notice. Based on these findings, the Commission ruled that a longer notice period was warranted.

The Fair Work Commission ordered that the union must provide a notice period of 28 days instead of the seven days it had initially proposed. This decision ensures that Coles Group Supply Chain Pty Ltd has sufficient time to prepare for the potential industrial action and mitigate any adverse effects on their operations and the wider economy.

United Workers' Union (108V) v Coles Group Supply Chain Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established