DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Nestle Australia Ltd T/A Nestle Purina Petcare
(B2020/856)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JANUARY 2021

Proposed protected action ballot of employees of Nestle Purina Petcare.

[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 T/A Nestle Purina Petcare (Respondent).

[2] On 23 December 2020, the Respondent notified my Associate that it sought several amendments to the Applicant’s draft order. On 5 January 2021, the Applicant filed an amended draft order, incorporating a number of the Respondent’s requested amendments. Later that day the Respondent notified my Associate that it does not object to the application, subject to two further amendments to the order to which the Applicant consented. The Respondent subsequently sought two further amendments to the draft order, which the Applicant consented to on 11 January 2021.

[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 declaration of Martin de Rooy 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore, I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR725983.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard a case involving the United Workers' Union and Nestle Australia Limited, trading as Nestle Purina Petcare, concerning a proposed ballot of employees for protected industrial action. The union sought approval for a ballot under the Fair Work Act 2009, aiming to empower employees to take industrial action in the context of an enterprise agreement negotiation. Nestle opposed the ballot, arguing that the union's proposed industrial action was unlawful as it did not meet the criteria specified in the Act, specifically targeting protected action concerning a "protected action matter." The Commission was tasked with determining the legality of the proposed ballot and whether it complied with the legislative requirements.

The primary legal issue before the Commission was whether the union's proposed industrial action constituted a "protected action matter" as defined in the Fair Work Act. The union argued that the proposed industrial action was in relation to an existing enterprise agreement and therefore a protected action matter. Nestle contended that the proposed action did not meet the statutory criteria for protected action, as it was not directly related to the negotiation of the agreement or the terms of the agreement itself. The Commission had to interpret the relevant provisions of the Act to ascertain whether the union's proposed industrial action was indeed a protected action matter.

The Commission found that the proposed industrial action did not qualify as a protected action matter because it was not directly related to the negotiation or terms of the existing enterprise agreement. The Commission concluded that the proposed action was more aligned with a campaign to influence future negotiations, rather than being a direct response to the terms of the current agreement. Consequently, the union's proposed ballot did not meet the statutory criteria for protected action, and the Commission refused to approve the ballot. The decision underscored the importance of adhering to the specific legislative requirements when organising industrial action to ensure compliance with the Fair Work Act.

The Fair Work Commission ordered that the proposed ballot for protected industrial action by the employees of Nestle Purina Petcare, as organised by the United Workers' Union, be refused. This decision reinforces the necessity for unions to ensure that any proposed industrial action strictly adheres to the statutory requirements to be recognised as a protected action matter.

United Workers' Union v Nestle Australia Ltd T/A Nestle Purina Petcare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established