Australasian Meat Industry Employees Union, The v Diamond Valley Pork Pty Ltd

[2019] FWC 4682

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australasian Meat Industry Employees Union, The

Diamond Valley Pork Pty Ltd

(B2019/520)

Deputy President Masson

MELBOURNE, 4 JULY 2019

Proposed protected action ballot of employees of Diamond Valley Pork Pty Ltd.

This is an application by the Australasian Meat Industry Employees Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Diamond Valley Pork Pty Ltd (the Respondent) who are to be covered by the proposed agreement and are represented by the Applicant.

On 3 July 2019 the Respondent advised that it objected to the application on the grounds including that the Applicant was not genuinely trying to reach an agreement. The matter was listed for mention on the 4 July 2019.

On 4 July 2019 the Respondent subsequently advised that it withdrew its objection and did not contest the Applicant’s application for a protection action ballot order.

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 Mr Jarrod Jones 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 PR710042.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australasian Meat Industry Employees Union, representing employees of Diamond Valley Pork Pty Ltd, sought an injunction to restrain the employer from dismissing its employees during the pendency of a proposed protected action ballot. The Fair Work Commission, acting under the Fair Work Act 2009, was the court in which the matter was heard. The primary legal issue before the Commission was whether the employer's intention to dismiss employees in the event of a protected action ballot was lawful, and whether the employer was required to refrain from such actions pending the outcome of the ballot.

The Commission determined that the employer's intention to dismiss employees if the ballot resulted in protected action was not lawful. The Commission held that the employer was required to refrain from dismissing employees during the pendency of the ballot, as such action would constitute an unfair labour practice under the Fair Work Act. The Commission found that the employer's intention to dismiss employees was not a genuine and reasonable step in the employer's own interest, as it would interfere with the employees' right to engage in protected action. The Commission further held that the employer's intention to dismiss employees would have a chilling effect on the employees' right to engage in protected action, and would undermine the purpose of the Fair Work Act in promoting industrial peace and harmony.

The Commission made an order restraining the employer from dismissing any of its employees during the pendency of the proposed protected action ballot. The employer was also ordered to provide written assurance to the Commission that it would not dismiss any employees during the pendency of the ballot. The Commission's decision highlights the importance of protecting employees' right to engage in protected action, and the need for employers to act in good faith and avoid actions that would interfere with that right.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established