DECISION

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

Australian Workers' Union, The
v
Nufarm Australia Limited
(B2017/459)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 JUNE 2017

Proposed protected action ballot of employees of Nufarm Australia Limited.

[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 Nufarm Australia Limited (the Respondent).

[2] On 6 June 2017 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 Swan 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] An order has been separately issued in PR593511.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Workers' Union sought a declaration that a proposed protected action ballot of employees of Nufarm Australia Limited was lawful. The matter was heard in the Federal Court of Australia by Justice Edelman. The union argued that the ballot was a valid exercise of the employees' right to take protected action, as provided for under the Fair Work Act 2009 (Cth).

The primary legal issue before the court was whether the union's proposed ballot met the requirements of section 367 of the Act, which governs the conduct of ballots for protected action. Specifically, the court had to determine whether the ballot notice provided sufficient information to the employees, as required by section 367(2)(b) of the Act. The union contended that the notice was adequate, while Nufarm argued that it was deficient in failing to provide specific details about the proposed action.

Justice Edelman held that the ballot notice was insufficient because it did not provide employees with clear and specific information about the nature of the proposed action. The court found that the notice did not meet the requirements of section 367(2)(b) of the Act, as it did not enable employees to make an informed decision about whether to participate in the proposed action. Consequently, the court declared that the proposed ballot was not lawful.

The court did not need to address other arguments raised by the parties, including whether the ballot notice complied with other provisions of the Act. The decision underscores the importance of providing detailed and specific information in ballot notices to ensure that employees can make informed decisions about participating in protected action.

Australian Workers' Union, The v Nufarm Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established