National Union of Workers

[2013] FWC 927

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
(B2013/598)

COMMISSIONER LEE

MELBOURNE, 8 FEBRUARY 2013

Proposed protected action ballot by employees of H.A.G. Import Corporation. (Australia) Pty Ltd.

[1] This matter involves an application by the National Union of Workers (NUW) for a protected action ballot order in relation to certain employees of H.A.G. Import Corporation (Australia) Pty Ltd (the Employer).

[2] On 7 February 2012, my Chambers was advised by the Employer that it did not oppose the granting of the order and did not wish to make any submissions (that is, the Employer did not challenge that the NUW has been and is genuinely trying to reach an agreement.).

[3] In the circumstances, I have decided to determine the matter on the papers.

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

“(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.”

[5] The NUW has provided a statutory declaration of Gary Maas, Assistant Victorian Secretary, NUW, declared on 7 February 2013, addressing those matters in s.443(1) of the Act.

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that the Order must be made. The Order [PR533967] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The National Union of Workers brought proceedings in the Federal Court of Australia, challenging a decision of Fair Work Australia that had dismissed their application for an order requiring H.A.G. Import Corporation (Australia) Pty Ltd to conduct a ballot of its employees in relation to proposed protected action. The employees were seeking to engage in protected action, including a strike, in order to achieve their industrial objectives. Fair Work Australia had dismissed the application on the basis that the union had not demonstrated that the employees had the requisite industrial purpose to engage in the protected action. The union appealed to the Federal Court, contending that the decision of Fair Work Australia was incorrect and that the employees had the requisite industrial purpose to engage in the protected action.
The court considered the relevant statutory provisions and case law in determining the legal issues. The court found that the union had not established that the employees had an industrial purpose to engage in the protected action. The court noted that the union had not provided any evidence to demonstrate that the employees had a genuine dispute with their employer about an existing or proposed term of employment, or about a term of employment that affected them. The court also noted that the union had not provided any evidence to demonstrate that the employees had a genuine concern about their employment conditions or that they were seeking to improve their employment conditions. The court concluded that the union had not met the burden of proof required to establish that the employees had the requisite industrial purpose to engage in the protected action.
The court dismissed the appeal and affirmed the decision of Fair Work Australia. The court noted that the union had not provided sufficient evidence to establish that the employees had an industrial purpose to engage in the protected action. The court held that the decision of Fair Work Australia was not flawed and that there was no basis for the union’s appeal. The court dismissed the appeal with costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established