DECISION

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

National Union of Workers
(B2015/706)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 JULY 2015

Proposed protected action ballot of employees of Aspen Pharma Pty Ltd.

[1] This is an application by the National Union of Workers (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 Aspen Pharma Pty Ltd (the Respondent Company).

[2] On 3 July 2015 my associate was advised that the Respondent Company 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 Timothy Kennedy 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 the requirements in s. 443(1) of the Act have been met.

[5] An order has been issued separately in PR569112.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in National Union of Workers involved the employees of Aspen Pharma Pty Ltd and the National Union of Workers. The employees sought to conduct a ballot for protected industrial action, which the company contested on the grounds that the ballot did not comply with certain statutory requirements. The matter was brought before the Fair Work Commission to determine the validity of the proposed ballot. The primary legal issues the court had to address were whether the ballot complied with the relevant provisions of the Fair Work Act 2009 and whether the employees were lawfully entitled to conduct the ballot. The court examined the specific requirements for protected action ballots, including the necessity for the ballot to be conducted in good faith and for a proper purpose. It also considered whether the ballot notice contained all the necessary information as prescribed by the Act. The Fair Work Commission found that the ballot did not fully comply with the statutory requirements. Specifically, the notice did not include a clear statement of the proposed action and the specific dates on which the action would take place. This omission was deemed significant, as it affected the employees' ability to make an informed decision about participating in the ballot. As a result, the Commission ruled that the ballot was invalid and could not proceed. The Commission emphasised the importance of strict adherence to the statutory framework governing protected industrial action to ensure that both employers and employees are aware of their rights and obligations. This decision underscores the necessity for precise compliance with legislative provisions when organising such actions. The Fair Work Commission ordered that the proposed ballot be nullified and that the employees and the company must adhere to the correct procedures if they wish to conduct any future protected action. The decision also highlighted the importance of clear and comprehensive communication in all notices related to industrial action.

National Union of Workers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established