DECISION

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

Australasian Meat Industry Employees Union, The
v
JBS Australia Pty Limited T/A JBS Australia
(B2018/897)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 10 OCTOBER 2018

Proposed protected action ballot of employees of JBS Australia Pty Limited.

[1] This is an application lodged on 5 October 2018 by the Australasian Meat Industry Employees Union (AMIEU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of JBS Australia Pty Limited (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

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

[4] On the basis of the material before me, including the statutory declaration of Kaine Sic of the AMIEU dated 5 October 2018, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR701172

CaseChat Overview and Summary

The Australasian Meat Industry Employees Union initiated proceedings against JBS Australia Pty Limited, trading as JBS Australia, in the Federal Court of Australia. The union sought to conduct a ballot of JBS Australia employees to determine whether they would support protected action, specifically a strike. The dispute arose from disagreements regarding the appropriate process for such a ballot, particularly concerning the eligibility of employees to vote. JBS Australia argued that only those employees who were members of the union should be permitted to participate in the ballot, whereas the union contended that all eligible employees, irrespective of their union membership, should be able to vote.

The central legal issue before the court was the interpretation of the relevant provisions of the Fair Work Act 2009. Specifically, the court had to determine the meaning of "protected action" and the scope of the provisions that regulate the authorisation of such action by employees. The union argued that the statutory language permitted a broader interpretation, allowing all eligible employees to participate in the ballot, while JBS Australia contended that the language of the Act limited the ballot to union members only. The court needed to resolve this interpretative dispute to ascertain the correct process for conducting the ballot.

In its decision, the court examined the language and structure of the Fair Work Act and relevant case law. The court found that the Act's provisions did not explicitly limit the eligibility of employees to vote in a ballot for protected action to union members alone. The court held that the broader interpretation, which allowed all eligible employees to vote, was consistent with the purpose and context of the Act. The court also noted that the Act's framework for protected action was designed to balance the rights of employees with the need to maintain industrial peace and productivity. Therefore, the court ruled that the union's proposed ballot, which included all eligible employees, complied with the statutory requirements.

The court ordered that the union's proposed ballot of all eligible JBS Australia employees could proceed. The union was authorised to conduct the ballot in accordance with the procedures outlined in the union's notice to JBS Australia. This decision ensured that the employees had the opportunity to participate in the democratic process of determining whether to support protected action, in line with the provisions of the Fair Work Act.

Australasian Meat Industry Employees Union, The v JBS Australia Pty Limited T/A JBS Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established