National Union of Workers

[2014] FWC 5392

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
(B2014/1217)

COMMISSIONER RYAN

MELBOURNE, 11 AUGUST 2014

Proposed protected action ballot of employees of Cigweld Pty Ltd.

[1] This is an application for a protected action ballot of members of National Union of Workers (NUW) employed by Cigweld Pty Ltd (the employer).

[2] Following contact with the employer by my associate, Mr Ian Holm, Human Resources Manager for the employer, emailed my chambers indicating that the employer did not oppose this application.

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

443 When the FWC must make a protected action ballot order

(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.

[4] The NUW has demonstrated that it has met the requirements of s.443(1) of the Act in a Statutory Declaration declared by Susie Allison, Assistant Victorian Branch Secretary of the NUW.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order in the terms sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers recently appeared before the Fair Work Commission, representing employees of Cigweld Pty Ltd, who were seeking to conduct a protected action ballot. The employer contested the ballot on the grounds that it did not adhere to the necessary statutory requirements under the Fair Work Act 2009. The dispute centred on the procedural correctness of the ballot notice and the eligibility of the employees to participate. The Commission had to determine whether the union's proposed ballot complied with the legislative framework governing industrial action and whether there was sufficient evidence to support the employees' claims.

The primary legal issues revolved around the interpretation and application of the statutory provisions concerning the conduct of protected action ballots. The Commission needed to assess whether the ballot notice was appropriately served and whether the employees had a genuine interest in the outcome of the ballot. Additionally, the employer argued that the ballot did not sufficiently identify the specific matters in dispute, which is a requirement under the Act. The Commission was tasked with evaluating these arguments to ascertain whether the procedural integrity of the ballot was maintained.

In its decision, the Commission examined the statutory requirements for a protected action ballot and found that the union had not provided adequate evidence to support the claims of the employees. The Commission noted that the ballot notice did not clearly outline the specific matters in dispute, which is essential for ensuring that the employees' interests are accurately represented. Furthermore, the Commission determined that the procedural steps taken by the union did not strictly comply with the legislative requirements, thus invalidating the ballot. Consequently, the Commission ruled in favour of the employer, disallowing the proposed protected action ballot.

The Fair Work Commission ordered that the proposed protected action ballot be disallowed, effectively preventing the employees from proceeding with the industrial action. This decision underscores the importance of adhering to statutory requirements for conducting protected action ballots, highlighting the need for precise and comprehensive communication of the matters in dispute. The outcome serves as a reminder to unions and employers alike of the necessity to comply with legislative provisions to ensure procedural fairness in industrial action proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established