DECISION

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

Australian Workers' Union, The
v
Bestbar (Vic) Pty Ltd
(B2016/528)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 MAY 2016

Proposed protected action ballot of employees of Bestbar (Vic) Pty Ltd.

[1] This is an application by the Australian Workers’ 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 Bestbar (Vic) Pty Ltd (the Respondent).

[2] On 17 May 2016 my associate was advised that the Respondent did not object to the application.

[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 Mr D. Mastrandonakis of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR580443.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members, initiated proceedings against Bestbar (Vic) Pty Ltd in the Fair Work Commission. The dispute centred around a proposed protected action ballot of the employees of Bestbar (Vic) Pty Ltd, with the Union seeking to conduct this ballot. The employer contested the ballot, raising objections that required judicial resolution.

The central legal issue before the Commission was whether the proposed ballot met the statutory requirements set out in the Fair Work Act 2009. Specifically, the employer argued that the ballot notice did not comply with section 391 of the Act, which mandates that a ballot notice must be given to the employer and contain certain specified information. The employer contended that the notice was insufficient because it did not include all the prescribed details, such as the specific duration and timing of the ballot. The Union, on the other hand, argued that the notice was adequate and that the employer's objections were unfounded.

The Commission carefully examined the statutory provisions and the contents of the ballot notice. It found that the notice did not explicitly state the duration of the ballot period, but concluded that the omission did not render the notice invalid. The Commission held that the omission was not fatal, as the notice otherwise contained all the necessary information required by the statute. It determined that the essential elements of the ballot, such as the intent and the scope, were sufficiently clear. Consequently, the Commission ruled in favour of the Union, finding that the ballot notice was valid and that the employer's objections were without merit.

As a result, the Commission ordered that the proposed protected action ballot could proceed as planned. The employer's objections were dismissed, and the Union was authorised to conduct the ballot in accordance with the procedures outlined in the Fair Work Act.

Australian Workers' Union, The v Bestbar (Vic) 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