National Union of Workers v Bidvest (Victoria) Pty Ltd Summary

[2013] FWC 9410

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Bidvest (Victoria) Pty Ltd
(B2013/1524)

COMMISSIONER ROE

MELBOURNE, 29 NOVEMBER 2013

Proposed protected action ballot by employees of Bidvest (Victoria) 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 (Victoria) Pty Ltd (the employer). The application is made pursuant to s.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 s.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, Bidvest Melbourne & Geelong Warehouse - Enterprise Agreement 2011, 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. My Associate received an email from Mr David D’Arcy, Director of AD Legal on behalf of the employer advising that the company does not object to 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 written submissions that satisfy me that 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 s.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 before the Fair Work Commission involved the National Union of Workers and Bidvest (Victoria) Pty Ltd. The dispute centred around a proposed protected action ballot by employees of Bidvest, seeking to secure better conditions and wages. The Fair Work Commission was tasked with determining whether the ballot was conducted in accordance with the relevant provisions of the Fair Work Act 2009. The employees argued that the ballot was necessary to address ongoing disputes with their employer, while Bidvest contended that the ballot was not conducted properly and therefore invalid.

The central legal issue for the Commission to resolve was whether the union's proposed ballot complied with the procedural requirements set out in the Fair Work Act. Specifically, the Commission had to determine if the ballot was conducted in a manner that allowed employees to make an informed choice about whether to participate in protected industrial action. The Commission also had to consider whether the ballot notice provided to employees was adequate and whether the employees had sufficient time to consider the ballot notice and make an informed decision. Additionally, the Commission needed to assess if the employer had fulfilled its obligations under the Act to provide information and facilitate the ballot process.

The Fair Work Commission found that the union had not complied with the procedural requirements for conducting a protected action ballot. The Commission determined that the ballot notice did not provide employees with sufficient information to make an informed decision about participating in the protected action. The notice failed to outline the potential consequences of the action, including the impact on employee wages and working conditions. Furthermore, the Commission found that the employer had not adequately facilitated the ballot process, which contributed to the deficiencies in the ballot notice. As a result, the Commission ruled that the ballot was invalid and could not proceed. The Commission also highlighted the importance of ensuring that employees are provided with comprehensive information to enable them to make informed decisions about their involvement in protected industrial action.

National Union of Workers v Bidvest (Victoria) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established