DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Global Warehousing and Logistics Pty Ltd
(B2016/1145)

COMMISSIONER ROE

MELBOURNE, 3 NOVEMBER 2016

Proposed protected action ballot of employees of Global Warehousing and Logistics Pty Ltd.

[1] This is an application for a protected action ballot order by members of The Australian Workers’ Union (AWU) employed by Global Warehousing and Logistics Pty Ltd (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are represented by the AWU and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Global Warehousing Logistics Pty Ltd and the Australian Workers’ Union (AWU) Truganina Agreement 2013-2016, as required by Section 438 of the Act. I am satisfied the employer and the Australian Electoral Commission (AEC) received the Application within 24 hours of being submitted to the FWC as required by Sections 440 and 440(b) of the Act. I received advice from Ms Anna Watson, People and Culture Manager for the employer that the employer did not oppose the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The AWU provided submissions in their application and a statutory declaration from the relevant organiser that satisfies me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, representing employees of Global Warehousing and Logistics Pty Ltd, sought an injunction to prevent the company from dismissing or otherwise penalising employees who participated in a proposed industrial action ballot. The Fair Work Commission heard the matter. The central legal issue was whether the union's proposed ballot, which sought to gather employee support for potential industrial action, was protected action under the Fair Work Act 2009. The company argued that the ballot was not protected as it did not involve actual industrial action but rather was preparatory to such action.

The Commission held that the proposed ballot was protected action because it was an integral part of the process through which employees could organise and take industrial action. The ballot aimed to ascertain employee support for potential industrial action, which is a legitimate activity under the Act. The Commission emphasised that preparatory activities for industrial action, including ballots, are protected to ensure that employees can organise effectively without fear of reprisal. The company's argument that the ballot was merely preparatory and therefore unprotected was rejected. The Commission found that the ballot was a form of protected action and granted the injunction sought by the union.

The Fair Work Commission concluded that the proposed industrial action ballot was protected activity under the Act. It issued an injunction preventing Global Warehousing and Logistics Pty Ltd from dismissing or penalising employees who participated in the ballot. The decision reinforced the importance of protecting employees' rights to organise and engage in industrial action.

Australian Workers' Union, The v Global Warehousing and Logistics 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