DECISION

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

Australian Workers' Union, The
v
Viscount Plastics (Australia) Pty Ltd T/A Viscount Plastics
(B2016/603)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JUNE 2016

Proposed protected action ballot of employees of the Respondent who will be covered by the proposed enterprise agreement.

[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 Viscount Plastics (Australia) Pty Ltd t/a Viscount Plastics (the Respondent).

[2] On 14 June 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 S Bonica 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 PR581546.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union, acting on behalf of the employees of Viscount Plastics (Australia) Pty Ltd trading as Viscount Plastics, sought authorisation for a proposed industrial action ballot. The employees sought to ballot for a range of proposed protected actions in response to the employer's refusal to negotiate in good faith regarding a new enterprise agreement. The Commission was required to determine whether the proposed action was protected action as defined in the Fair Work Act 2009 (Cth) and, if so, whether authorisation should be granted.

The central legal issue before the Commission was whether the proposed industrial action constituted protected action under section 352 of the Fair Work Act. The Act defines protected action as actions taken in pursuit of an industrial issue, with a number of specified exclusions. The Commission also needed to consider whether the proposed action was taken in accordance with the procedural requirements of the Act. These requirements include providing the employer with a written notice of the proposed action, giving the employer an opportunity to respond to the proposed action, and waiting for the prescribed period after providing the notice before taking the action.

The Commission found that the proposed action did constitute protected action as it was taken in pursuit of an industrial issue and complied with the procedural requirements. The employer had been provided with a notice of the proposed action and had been given an opportunity to respond. The Commission also found that the employer had not negotiated in good faith, as evidenced by its refusal to consider the union's proposals and its insistence on including terms that were not reasonably capable of being part of an enterprise agreement. The Commission authorised the union to conduct the proposed industrial action ballot.

The Commission's decision underscores the importance of good faith negotiations in the enterprise agreement process. Employers must engage in meaningful discussions with their employees' representatives and avoid taking intransigent positions that could lead to industrial action. The decision also highlights the procedural requirements that must be followed when taking protected action, including providing the employer with notice and an opportunity to respond. The authorisation of the proposed industrial action ballot in this case is a reminder of the importance of protecting the rights of employees to take protected action in pursuit of their legitimate industrial objectives.

Australian Workers' Union, The v Viscount Plastics (Australia) Pty Ltd T/A Viscount Plastics

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established