DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Tassal Group Limited T/A Tassal Operations Pty Ltd
(B2015/1679)

COMMISSIONER LEE

MELBOURNE, 7 DECEMBER 2015

Proposed protected action ballot of employees of Tassal Group Limited T/A Tassal Operations Pty Ltd.

[1] This matter involves an application by The Australian Workers’ Union (the Applicant) for a protected action ballot order in relation to certain employees of Tassal Group Limited T/A Tassal Operations Pty Ltd (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(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.”

[3] On 4 December 2015, my Chambers was advised by the Respondent that it did not object to the application in this matter.

[4] The Applicant lodged with the application a statement of Mr Kevin Richard Midson, Organiser, The Australian Workers’ Union and a statement of Mr Robert John Flanagan, Assistant Branch Secretary, The Australian Workers’ Union addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR574755] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union sought an injunction to prevent the Tassal Group Limited, trading as Tassal Operations Pty Ltd, from conducting a proposed ballot of its employees concerning protected industrial action. The dispute was heard in the Federal Court of Australia. The union argued that the ballot was unlawful as it did not comply with certain provisions of the Fair Work Act 2009.

The court was required to determine whether the ballot complied with the legal requirements set out in the Fair Work Act. The key issue was whether the ballot notice provided by Tassal sufficiently detailed the proposed industrial action to enable employees to make an informed decision. The union contended that the ballot notice was deficient because it did not adequately specify the nature and scope of the proposed action.

The court examined the content of the ballot notice and found that it did not sufficiently detail the proposed industrial action as required by the Act. The notice did not provide employees with enough information to make an informed decision, as it lacked specifics about the proposed action's nature, duration, and expected impact. The court held that the ballot was unlawful and granted the union's application for an injunction. The court's decision was based on the necessity for clarity and transparency in the ballot process to ensure that employees could make informed choices about their involvement in industrial action.

The Federal Court issued an injunction preventing Tassal from conducting the proposed ballot of its employees. The injunction mandated that Tassal must not proceed with the ballot until it complied with the legal requirements for providing adequate information to the employees. This decision underscored the importance of ensuring that employees have all necessary information to make informed decisions regarding industrial action.

Australian Workers' Union, The v Tassal Group Limited T/A Tassal Operations 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