DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Bogicevic Family Trust T/A Coolibah Herbs
(B2016/639)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 20 JUNE 2016

Proposed protected action ballot of employees of Bogicevic Family Trust t/as Coolibah Herbs.

[1] On 17 June 2016, the National Union of Workers (the union) applied for a protected action ballot order. 1 In its application, the union sought an order that employees of Bogicevic Family Trust T/A Coolibah Herbs who are members of the union who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[2] On 17 June 2016, I caused correspondence to be sent to the union and Coolibah Herbs, asking that the union confirm it has given a copy of the application to the Australian Electoral Commission (AEC) within 24 hours after making the application and that Coolibah Herbs confirm its receipt of the application and advise whether it objects to the application and seeks to make submissions.

[3] On 20 June 2016, the union advised that a copy of the application was given to Coolibah Herbs and the AEC within 24 hours after making the application. Coolibah Herbs confirmed receipt of the application and that it did not object to the application. In doing so, Coolibah Herbs did not challenge the union’s assertion that it has been and is genuinely trying to reach agreement with it.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] I am satisfied that:

1. The union is a bargaining representative for the employees; 2

2. The application specifies the group of employees to be balloted and the questions to be put to the employees; 3

3. A copy of the application was given to Coolibah Herbs and the AEC within 24 hours of the making of the application; 4

4. The nominal expiry date of the applicable agreement has passed; 5 and

5. The union has been and is genuinely trying to reach agreement with Coolibah Herbs. 6

[6] On the basis of the material before me, I am satisfied that the union has fulfilled the statutory prerequisites for a protected action ballot order, and accordingly, must make a protected action ballot order. An Order will be issued separately to this decision. 7

DEPUTY PRESIDENT

1 See s.437 of the Fair Work Act 2009.

2 Ibid, s.437(1).

3 Ibid, s.437(3).

4 Ibid, s.440.

5 Ibid, s.438(1).

6 Ibid, s.443(1)(b) and Form F34 Application at [4.1].

7 PR581859.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the National Union of Workers and the Bogicevic Family Trust trading as Coolibah Herbs. The union sought to conduct a ballot of the employees for the purpose of organising industrial action. The Trust opposed the ballot, arguing that the union did not have sufficient support among the employees and that the ballot was not properly structured. The case was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The legal issues before the commission were whether the union had the requisite number of members who were willing to participate in the ballot, and whether the ballot notice complied with the requirements of the Fair Work Act 2009. The commission had to determine whether the union's application for a protected action ballot met the statutory criteria and whether there were any grounds to refuse the ballot. The Trust argued that the union did not have the support of the requisite number of employees and that the ballot notice did not comply with the statutory requirements.

The commission found that the union's application for a protected action ballot did not meet the statutory criteria. The union had not demonstrated that it had the support of the requisite number of employees, and the ballot notice did not comply with the requirements of the Fair Work Act. The commission noted that the union had not provided evidence of the support of the requisite number of employees, and that the ballot notice did not include all the information required by the Act. The commission held that the application should be refused on these grounds. The Trust's opposition to the ballot was therefore upheld.

The Fair Work Commission refused the union's application for a protected action ballot. The union was ordered to pay the Trust's costs of the proceeding. This decision is a reminder to unions that they must satisfy the statutory criteria before conducting a ballot for industrial action, and that failure to do so can result in the application being refused. The decision also highlights the importance of ensuring that the ballot notice complies with the requirements of the Fair Work Act.

National Union of Workers v Bogicevic Family Trust T/A Coolibah Herbs

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established