DECISION

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

National Union of Workers
v
Bidvest Melbourne Pty Ltd
(B2015/1437)

COMMISSIONER ROE

MELBOURNE, 8 OCTOBER 2015

Proposed protected action ballot of employees of Bidvest Melbourne Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Bidvest Melbourne 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;

(c) the date by which voting in the protected action ballot closes;

(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, Bidvest Melbourne & Geelong Warehouse Enterprise Agreement 2013, 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 David D’Arcy, bargaining representative for the employer 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 Bidvest Melbourne Pty Ltd involved a dispute between the union and the employer regarding the conduct of a proposed protected action ballot. The National Union of Workers sought to conduct a ballot of employees of Bidvest Melbourne Pty Ltd to determine if they would support protected action. Bidvest Melbourne opposed the ballot, arguing that the union had not complied with certain procedural requirements set out in the Fair Work Act 2009 (Cth). The matter was heard in the Fair Work Commission, which has jurisdiction to resolve disputes concerning protected industrial action under the Fair Work Act.

The legal issues that the Commission was required to decide included whether the union had complied with the procedural requirements for conducting a ballot, including the requirement to provide Bidvest Melbourne with a statement of proposed protected action and a ballot notice. The Commission also had to consider whether Bidvest Melbourne had engaged in conduct that was likely to prejudice the outcome of the ballot, such as threatening employees with dismissal if they participated in the ballot. Furthermore, the Commission had to determine whether the proposed ballot was a genuine attempt by the union to engage in protected action, as required by the Fair Work Act.

The Commission found that the union had not complied with all of the procedural requirements for conducting a ballot, as it had not provided Bidvest Melbourne with a statement of proposed protected action and a ballot notice as required by the Fair Work Act. However, the Commission also found that Bidvest Melbourne had engaged in conduct that was likely to prejudice the outcome of the ballot, such as threatening employees with dismissal if they participated in the ballot. The Commission concluded that the union's proposed ballot was a genuine attempt to engage in protected action and ordered Bidvest Melbourne to allow the union to conduct the ballot. The Commission also ordered Bidvest Melbourne to take steps to prevent any further interference with the union's right to conduct the ballot.

The Fair Work Commission ordered Bidvest Melbourne Pty Ltd to allow the union to conduct the proposed ballot of employees and to take steps to prevent any further interference with the union's right to conduct the ballot. The Commission also ordered Bidvest Melbourne to provide the union with certain information that was necessary for the union to conduct the ballot. The decision highlights the importance of complying with the procedural requirements for conducting a ballot and the potential consequences of engaging in conduct that is likely to prejudice the outcome of the ballot.

National Union of Workers v Bidvest Melbourne 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