National Union of Workers v Bluescope Distribution Pty Ltd

[2013] FWC 4025

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Bluescope Distribution Pty Ltd
(B2013/964)

COMMISSIONER WILSON

MELBOURNE, 21 JUNE 2013

Proposed protected action ballot by 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.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees of Bluescope Distribution Pty Ltd who will be covered by the proposed enterprise agreement and for whom the NUW is their bargaining representative.

[4] 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;

(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.

(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.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] 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 of the employees who are to be balloted. In this matter, I have no reason to believe that is not the case, as Bluescope Distribution Pty Ltd has not indicated opposition to the order being made.

[7] Having decided all of these matters and 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

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CaseChat Overview and Summary

In the case of National Union of Workers v Bluescope Distribution Pty Ltd, the National Union of Workers initiated proceedings against Bluescope Distribution Pty Ltd, seeking to compel the company to allow a proposed ballot of its employees regarding protected action. The matter was heard in the Fair Work Commission, where the Commission was required to determine whether the proposed ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth). The union argued that the ballot was necessary to ascertain the employees' views on potential protected action, including a strike, due to ongoing disputes with the employer.

The central legal issues before the Commission involved the interpretation and application of sections 390 and 391 of the Fair Work Act, which govern the requirements for a protected action ballot. Specifically, the Commission had to consider whether the union had provided adequate information to the employees about the proposed action, whether the ballot was conducted in good faith, and whether it complied with the procedural requirements outlined in the Act. Additionally, the Commission needed to assess whether the proposed action was genuinely for the purpose of a protected action, as defined under the Act.

The Commission found that the union had adequately informed the employees about the proposed protected action and that the ballot was conducted in good faith. The Commission also determined that the ballot complied with the procedural requirements of the Act, including the provision of necessary information and the opportunity for employees to vote. However, the Commission concluded that the proposed action was not genuinely for the purpose of a protected action because it included demands that were not directly related to the employees' employment conditions. As a result, the Commission did not order the employer to facilitate the ballot.

In light of the findings, the Commission dismissed the union's application. The decision underscores the importance of ensuring that proposed protected actions are genuinely related to employment conditions and that the procedural requirements of the Act are strictly adhered to. This case highlights the need for unions and employers to carefully consider the scope and nature of proposed actions to ensure compliance with the statutory framework governing industrial disputes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established