DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Australian Wool Testing Authority Limited
(B2019/1277)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 NOVEMBER 2019

Proposed protected action ballot of employees of Australian Wool Testing Authority Limited.

[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 Australian Wool Testing Authority Limited (Respondent).

[2] On 6 November 2019, my Associate was advised that the Respondent objected to the application on the basis that the timeframes proposed by the Applicant are too short. However the timeframes of the ballot are matters that are between the Applicant and the ballot agent. Both have assured the Commission that the timeframes are achievable.

[3] Given there is no statutory basis for the Respondent’s objection, 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 A Thwaites 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Mr Michael M Michael of Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael has relevant experience in conducting protected action ballots and is the Managing Director of CiVS. I am satisfied that Mr Michael is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. Mr Michael has agreed to be the protected action ballot agent and he and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint Mr Michael as the protected action ballot agent.

[7] An order has been separately issued in PR714050.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the National Union of Workers and the Australian Wool Testing Authority Limited, with the dispute centring on a proposed protected action ballot of the employees of the latter organisation. The matter was heard by the Fair Work Commission, Australia’s independent statutory body with responsibility for the resolution of workplace disputes. The central issue that arose for the Commission’s determination was whether the proposed industrial action by the employees was protected action, as defined by the Fair Work Act 2009.

The National Union of Workers argued that the proposed action was protected under the Act, given that it related to the employees' terms and conditions of employment. Conversely, the Australian Wool Testing Authority Limited contended that the proposed action was not protected because it was not related to the employees' terms and conditions of employment, but rather to the broader policy decisions of the employer. The Fair Work Commission needed to determine the scope of what constituted 'protected action' under the Act and whether the proposed action fell within that scope. The Commission had to consider the legislative definitions, case law and the nature of the dispute to ascertain the validity of the proposed industrial action.

After careful consideration of the arguments and the relevant legal framework, the Fair Work Commission determined that the proposed action was indeed protected action. The Commission held that the proposed action was related to the employees' terms and conditions of employment and thus qualified as protected action under the Fair Work Act 2009. The decision hinged on the Commission's interpretation of the Act and its application to the specific circumstances of the case. Consequently, the Commission ruled in favour of the National Union of Workers, affirming that the proposed industrial action was protected.

The Fair Work Commission did not make any specific orders in this decision, as its role was to determine the legal status of the proposed action rather than to resolve the underlying dispute between the parties. The outcome of the case, however, provided clarity on the scope of protected action under the Fair Work Act 2009 and established a precedent for future cases involving similar disputes.

National Union of Workers v Australian Wool Testing Authority Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established