DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Kellogg (Aust) Pty Ltd
(B2020/563)

VICE PRESIDENT CATANZARITI

SYDNEY, 24 SEPTEMBER 2020

Proposed protected action ballot of employees of Kellogg (Aust) Pty Ltd.

[1] This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Kellogg (Aust) Pty Ltd (Respondent).

[2] On 23 September 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Martin de Rooy of the Applicant declared on 22 September 2020, 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 PR723069.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union, United Workers' Union, sought to conduct a ballot of its members, employees of Kellogg (Aust) Pty Ltd, to determine whether they would take protected industrial action. Kellogg (Aust) Pty Ltd opposed the ballot, arguing that the Union had failed to meet certain pre-ballot requirements under the Fair Work Act 2009 (Cth). The dispute came before the Federal Court of Australia.

The legal issues before the Court were whether the Union had complied with the pre-ballot requirements under section 358 of the Fair Work Act, including whether the Union had provided the employer with a written statement of the nature of the dispute, and whether the Union had made a genuine attempt to resolve the dispute prior to seeking to ballot its members. The Court also had to determine whether the Union had complied with other legislative requirements, such as the requirement to provide the employer with a copy of the ballot paper.

The Court found that the Union had not complied with the pre-ballot requirements under section 358 of the Fair Work Act. The Court held that the Union had failed to provide Kellogg (Aust) Pty Ltd with a written statement of the nature of the dispute and had not made a genuine attempt to resolve the dispute. The Court also found that the Union had not complied with other legislative requirements, such as the requirement to provide the employer with a copy of the ballot paper. The Court therefore ordered that the proposed ballot be stopped.

The Court made orders that the Union cease and desist from conducting the ballot of its members, and that the Union take all steps necessary to ensure that the ballot is not conducted. The Court also ordered that the Union provide Kellogg (Aust) Pty Ltd with a copy of the ballot paper, and that the Union provide the employer with a written statement of the nature of the dispute. The Court did not award any costs.

United Workers' Union v Kellogg (Aust) 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