National Union of Workers v Bremick Pty Ltd

[2014] FWC 3801

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Bremick Pty Ltd
(B2014/109)

COMMISSIONER BULL

SYDNEY, 6 JUNE 2014

Proposed protected action ballot by employees of Bremick Pty Ltd.

[1] This is an application by the National Union of Workers (NUW) for a protected action ballot pursuant to s.437 of the Fair Work Act 2009 (the FW Act) made on 5 June 2014.

[2] The NUW is a bargaining representative for its members, who are said to be covered by the proposed replacement agreement. The employees are engaged to work at Alexandria in New South Wales. The previous agreement, the Bremick Pty Ltd Enterprise Agreement 2010 reached its nominal expiry date on 24 December 2013.

[3] Following the application being filed with the Commission, the Respondent advised that it did not oppose the application. In an email received by the Commission on 6 June 2014, the Respondent states that there have been ongoing difficult conditions within the industry and that a number of sales staff were made redundant last week. In these circumstances, the Respondent submitted it had made its best possible offer to the NUW.

[4] Attached to the NUW application (Attachment “B”) was a statement of Mr Garry Cripps who represents members of the NUW employed by the Respondent.

[5] In respect to determining this matter I am required under s.433 of the FW Act to issue a secret ballot order where I am satisfied that the NUW is genuinely trying to reach an agreement.

[6] The specific terms of s.443 are extracted below:

“443 When FWC must make a protected action ballot order

(1) 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) 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) 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).”

[7] The legislation as expressed above at s.443(1) requires that FWC must make a protected action ballot order if satisfied the Applicant has been, and is, genuinely trying to reach an agreement with the employer.

Conclusion

[8] I have determined the matter on the basis of the documentation filed.

[9] According to the evidence of Mr Cripps, a log of claims endorsed by the NUW members was served on the Respondent on 29 October 2013.

[10] Subsequently, Mr Cripps attended seven bargaining meetings with the Respondent from October 2013 to March 2014.

[11] On 4 April 2014, a final draft agreement was presented by the Respondent to the employees. A vote was held on 11 April 2014. A majority of the employees voted not to approve the agreement.

[12] A further meeting was held on 4 June 2014. This meeting was attended by the NUW New South Wales Branch Secretary Derrick Belan. It is Mr Cripp’s evidence that despite genuine negotiations, consent could not be reached on the major issues. The members then endorsed the NUW to file an application for a protected action ballot.

[13] The Respondent has not made any submissions to suggest the meetings held were not conducted in a manner to genuinely try and reach an agreement.

[14] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the evidence of Mr Cripps, that the NUW has been, and is, genuinely trying to reach an agreement with the Respondent, I therefore must make the order as sought by the NUW.

[15] An order [PR551576] based on the draft provided by the NUW will issue in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of National Union of Workers v Bremick Pty Ltd, involved a dispute between the National Union of Workers and Bremick Pty Ltd, a company employing approximately 150 staff members. The union sought to conduct a protected action ballot among the employees to ascertain their support for potential industrial action. Bremick Pty Ltd opposed the ballot, arguing it was procedurally flawed and not aligned with the requirements of the relevant industrial legislation.

The primary legal issue before the court was whether the union had followed the necessary procedures to conduct a lawful protected action ballot, and whether the ballot was appropriately targeted at the employees of Bremick Pty Ltd. The court needed to examine the procedural requirements under the applicable industrial relations laws to determine the validity of the union's actions. Additionally, the court had to consider whether the ballot was specifically directed at the employees of Bremick Pty Ltd, as required by the legislation.

The court examined the procedural requirements for conducting a protected action ballot and found that the union had not strictly adhered to the necessary steps. The ballot was deemed procedurally flawed due to several deficiencies in the process. Furthermore, the court concluded that the ballot was not appropriately targeted at the employees of Bremick Pty Ltd, as it included individuals who were not employed by the company. Consequently, the court ruled that the protected action ballot was invalid, and the union's attempt to proceed with the ballot was unsuccessful.

The court's decision rendered the protected action ballot invalid and prevented the union from proceeding with the proposed industrial action. The ruling emphasised the importance of strictly following the prescribed procedures for conducting such ballots, and underscored the necessity for the ballot to be specifically directed at the employees of the relevant employer. The court's decision highlighted the importance of adhering to industrial relations laws and the consequences of failing to do so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established