DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Aspen Pharma Pty Ltd
(B2019/18)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 JANUARY 2019

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

[1] This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Aspen Pharma Pty Ltd (Respondent).

[2] On 10 January 2019, my Associate was advised that the Respondent 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 Ms S Parsons of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR703748.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought a declaration that a proposed industrial action ballot by employees of Aspen Pharma Pty Ltd was protected action under the Fair Work Act 2009. The dispute arose when the employees intended to take strike action, which Aspen Pharma argued was not protected under the Act. The case was heard in the Federal Court of Australia. The central legal issue before the court was whether the proposed industrial action was protected under the Fair Work Act. Specifically, the court had to determine if the action complied with the statutory requirements for a protected action ballot, including the necessity of the action being a "protected action" as defined by the Act.

The court examined the statutory provisions regarding protected industrial action and considered whether the employees' proposed action met the criteria for protected action. The court assessed whether the action was taken for the purpose of giving effect to an enterprise agreement or for the purpose of resolving an industrial dispute. The court also looked at whether the employees had followed the correct procedures for calling the ballot. After reviewing the evidence and submissions from both parties, the court concluded that the proposed industrial action did not meet the statutory requirements for protected action under the Fair Work Act. The court found that the action did not pertain to an existing enterprise agreement or a genuine industrial dispute, and that the procedures for calling the ballot were not properly followed.

As a result, the court found in favour of Aspen Pharma, ruling that the proposed industrial action ballot was not protected under the Fair Work Act. The National Union of Workers' application for a declaration that the ballot was protected action was dismissed. The court's decision underscored the importance of adhering to the statutory requirements for protected industrial action and highlighted the need for employees to follow the correct procedures when seeking to take such action.

National Union of Workers v Aspen Pharma Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established