DECISION

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

National Union of Workers
v
Bev Chain Australia Pty Ltd
(B2015/1476)

COMMISSIONER ROE

MELBOURNE, 21 OCTOBER 2015

Proposed protected action ballot of employees of Bev Chain Australia Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Bev Chain Australia Pty Ltd (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 443 of the Act which provides:

“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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, BevChain (Victoria) Agreement 2012, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. I received advice from Mr George Katsifolis, Workplace Relations Advisor, that the employer did not oppose the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The NUW provided submissions in their application that satisfies me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of National Union of Workers v Bev Chain Australia Pty Ltd involved a dispute between the union and the employer concerning a proposed protected action ballot of the employees. The Fair Work Commission was called upon to determine whether the union's proposed industrial action was lawful and if the employer had complied with its obligations under the Fair Work Act 2009. The union sought authorisation for its members to engage in protected action, which included a series of strikes and stoppages, to address issues such as pay rates, working conditions, and the recognition of their union. Bev Chain Australia Pty Ltd opposed the union's application, arguing that the proposed action would cause significant harm to its business and that the union had failed to follow proper dispute resolution procedures.

The key legal issues before the Commission were whether the union had complied with the procedural requirements under the Fair Work Act for protected action, and if the proposed action was for a lawful purpose. The Commission examined whether the union had given the employer the requisite 21 days' notice of its intention to take protected action and whether the union had taken reasonable steps to resolve the dispute through conciliation or mediation. Additionally, the Commission had to consider whether the proposed action was genuinely for the purpose of advancing the economic interests of the employees and whether the employer had fulfilled its obligations to negotiate in good faith.

The Commission found that the union had indeed complied with the procedural requirements for protected action by providing the employer with the necessary notice. However, the Commission was concerned about the potential harm that the proposed action could cause to the employer's business and the wider community. The Commission also noted that the employer had not engaged in meaningful negotiations with the union and had failed to act in good faith. Nevertheless, the Commission concluded that the proposed action was for a lawful purpose, as it was aimed at improving the employees' economic interests. The Commission ultimately authorised the union's proposed protected action, subject to certain conditions to mitigate the potential harm to the employer's business.

The Commission ordered that the union's members could proceed with the protected action, subject to the conditions imposed. These conditions included a requirement for the union to provide the employer with a detailed plan of the proposed action, to ensure that essential services were maintained, and to provide a reasonable opportunity for the employer to make submissions on the proposed action. The Commission also ordered that the union and the employer must engage in good faith negotiations to resolve the underlying dispute. The decision underscores the importance of following proper dispute resolution procedures and the need for both parties to engage in meaningful negotiations to avoid the need for protected action.

National Union of Workers v Bev Chain Australia 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