National Union of Workers

[2014] FWC 3917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
(B2014/860)

COMMISSIONER RYAN

MELBOURNE, 12 JUNE 2014

Proposed protected action ballot by employees of Fonterra Australia Pty Ltd.

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

[2] Following contact with the employer by my associate, Ms Kelli Sullivan, Regional 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 statement signed by Tim Kennedy, 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 was involved in a dispute with Fonterra Australia Pty Ltd, concerning the proposed protected action by employees of the latter company. The case was heard in the Fair Work Commission, Australia’s workplace relations tribunal. The dispute centred around the procedural fairness of the ballot conducted by the union to determine whether the employees wished to engage in protected industrial action.

The central legal issue before the Commission was whether the union had adhered to the procedural fairness requirements in conducting the ballot. The union argued that the ballot was conducted appropriately, while Fonterra contended that the ballot process was flawed, and as such, it did not accurately reflect the employees’ wishes. The Commission had to determine whether the union's conduct in calling and executing the ballot met the necessary standards of procedural fairness.

In its decision, the Fair Work Commission found that the union had indeed complied with procedural fairness requirements in conducting the ballot. The Commission considered various aspects of the ballot process, including the manner in which the ballot was advertised, the accessibility of the voting process, and the adequacy of the information provided to the employees. After a thorough examination of these factors, the Commission concluded that the union had acted fairly and in accordance with the relevant legal standards. Consequently, the Commission upheld the validity of the ballot results.

As a result of the Commission’s decision, the proposed protected action by the employees could proceed as per the outcomes of the ballot. The Fair Work Commission’s ruling confirmed the legitimacy of the union's actions in this matter, and no further orders were made beyond the affirmation of the ballot's validity.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established