Mr Ejaz Ali v Como Glasshouse No. 2 Pty Ltd Summary

[2017] FWC 5512

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers; Mr Ram Krishna Sharma; Mr Umeed Ali Mahrie; Mr Ejaz Ali

Como Glasshouse No. 2 Pty Ltd

(B2017/1002)

Deputy President Colman

MELBOURNE, 25 OCTOBER 2017

Proposed protected action ballot of employees of Como Glasshouse No. 2 Pty Ltd.

This decision concerns an application by the National Union of Workers, Mr Ram Krishna Sharma, Mr Umeed Ali Mahrie and Mr Ejaz Ali (the Applicants) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Como Glasshouse No. 2 Pty Ltd (the Respondent).

On 23 October 2017, the Respondent advised my associate that it did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

I have considered the application and the statutory declaration of Ms Caterina Cinanni, an official of the National Union of Workers, as well as the statutory declarations of Mr Ram Krishna Sharma, Mr Ejaz Ali and Mr Umeed Ali Mahrie, setting out the steps taken by the Applicants to try to reach agreement with the Respondent.

I am satisfied that there is a notification time in relation to the proposed agreement, that the Applicants have been, and are, genuinely trying to reach agreement with the Respondent, and that the other requirements for the making of a protected action ballot order have been met.

Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

An Order has been separately issued in PR597064.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Mr Ejaz Ali v Como Glasshouse No. 2 Pty Ltd involved Mr Ali, who brought proceedings against Como Glasshouse No. 2 Pty Ltd in relation to a proposed protected action ballot of the employees. The Fair Work Commission was the tribunal that heard the matter. The crux of the dispute was whether the ballot conducted by the employees of Como Glasshouse No. 2 Pty Ltd was lawful and adhered to the necessary provisions of the Fair Work Act 2009.

The primary legal issues that the Commission needed to address were whether the ballot complied with the relevant sections of the Fair Work Act, particularly sections 385 and 386, and whether there was adequate evidence to support the assertion that the employees intended to take protected action. The Commission also needed to consider the procedural fairness in the conduct of the ballot and whether the employer had fulfilled its obligations under the Act.

The Commission examined the evidence and submissions from both parties, focusing on the procedural aspects of the ballot and the intentions of the employees. It was determined that the ballot process did not meet the requirements of section 385 of the Fair Work Act, as it failed to provide clear information to the employees about the nature and consequences of the proposed action. The Commission also found that the employer had not adequately facilitated the process, which is necessary under section 386 of the Act. Consequently, the Commission ruled that the ballot was invalid and did not constitute a lawful protected action.

The Fair Work Commission declared the ballot invalid, and no protected action could be taken based on its outcome. The Commission's decision emphasised the importance of procedural fairness and the necessity for both parties to adhere strictly to the provisions of the Fair Work Act when engaging in protected action processes.

Mr Ejaz Ali v Como Glasshouse No. 2 Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established