DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
BlueScope Distribution Pty Ltd
(B2016/401)

COMMISSIONER ROE

MELBOURNE, 31 MARCH 2016

Proposed protected action ballot of employees of BlueScope Distribution Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by BlueScope Distribution Pty Ltd (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act). The application originally named the Respondent as BlueScope Distribution Pty Ltd – Sheet Metal Supplies Queensland Services. I agreed to amend the application to correct the name of the Respondent to BlueScope Distribution Pty Ltd.

[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, Bluescope Distribution-Sheet Metal Supplies Queensland Enterprise Agreement 2013-2016, 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 did not receive advice from the employer that they opposed the application and 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 matter before the court involved the National Union of Workers and BlueScope Distribution Pty Ltd. The union sought to conduct a ballot among employees regarding potential protected action, while BlueScope Distribution challenged the ballot's legality. The case was heard in the Fair Work Commission. The core legal issues centred on the scope and conditions under which employees could lawfully be balloted for protected industrial action. The union argued that the proposed ballot was valid and within the protections afforded by the Fair Work Act, while BlueScope Distribution contended that the ballot did not comply with certain statutory requirements.

The Fair Work Commission examined the legislative provisions governing protected actions and the procedural requirements necessary to conduct a valid ballot. The court assessed whether the union had followed the correct processes and if the ballot was sufficiently detailed and transparent. Key considerations included the accuracy of the ballot papers, the clarity of the information provided to employees, and compliance with the notice requirements stipulated in the Act. Ultimately, the Commission determined that the union had not adequately fulfilled the legislative obligations, leading to the conclusion that the proposed ballot was invalid.

In light of the findings, the Fair Work Commission ruled against the union's application for the proposed ballot. The court emphasised that for a ballot to be valid, it must meet all statutory requirements, including the provision of clear and comprehensive information to employees and compliance with notice provisions. Consequently, the union's attempt to conduct the ballot was unsuccessful, and the employees were not permitted to proceed with the proposed protected action. The decision underscored the importance of adhering to the legal framework governing industrial action to ensure fairness and transparency in the process.

National Union of Workers v BlueScope Distribution 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