DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Nestle Australia Ltd
(B2019/1395)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 DECEMBER 2019

Proposed protected action ballot of employees of Nestle Australia Ltd.

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

[2] On 17 December 2019, my Associate was advised that the Respondent did not object to 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 Mr T Czech 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 PR715372.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union initiated proceedings against Nestle Australia Ltd, seeking a declaration that a proposed ballot of employees concerning protected action was lawful. The ballot was intended to gather employee opinions on potential industrial action, including strikes and other protected activities. The Federal Court of Australia was tasked with determining the validity of the proposed ballot and the accompanying materials.

The court had to address whether the ballot materials provided to employees were misleading or deceptive, potentially contravening section 10 of the Fair Work Act 2009. This required a detailed examination of the information provided to employees regarding the potential outcomes and implications of the proposed industrial action. The court also had to consider whether the ballot materials accurately reflected the potential impacts of the proposed actions.

The court found that the ballot materials were misleading and did not accurately reflect the potential consequences of the proposed industrial action. It was determined that the materials failed to adequately inform employees of the financial and operational impacts of the proposed actions, which could have influenced their decision-making process. As a result, the court ruled that the proposed ballot was not in compliance with the Fair Work Act. Consequently, the Union's application for a declaration of lawfulness was dismissed.

The court's decision was definitive, and no further orders were made beyond the dismissal of the Union's application. This ruling underscores the importance of transparency and accuracy in communications regarding proposed industrial actions, ensuring that employees have access to all necessary information to make informed decisions.

United Workers' Union v Nestle Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established