National Union of Workers v Bridgestone Australia Ltd

[2014] FWC 6720

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Bridgestone Australia Ltd
(B2014/1389)

DEPUTY PRESIDENT GOOLEY

MELBOURNE, 23 SEPTEMBER 2014

Proposed protected action ballot of employees of Bridgestone Australia Ltd.

[1] The National Union of Workers (NUW) applied for a protected action ballot order. 1 The NUW sought an order that employees of Bridgestone Australia Ltd who are members of the NUW and who would be subject to the proposed enterprise agreement be balloted to see if they supported the taking of protected industrial action.

[2] It was not disputed that:

(1) The NUW is a bargaining representative for 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 the employer and the AEC within 24 hours of the making of the application. 4

(4) The nominal expiry date of the agreement has passed. 5

(5) The NUW is genuinely trying to reach an agreement with Bridgestone. 6

[3] Bridgestone opposed the application because it submitted the parties were very close to finalising the agreement. Further it submitted that question 3 of the ballot order put to employees was ambiguous. That question sought endorsement of an unlimited number of stoppages of 4 hours duration. In the event that an order was made they sought under s.443(5) that the NUW be order to give 7 days’ notice of any industrial action.

[4] That parties are very close to finalising an agreement does not prevent the making of a protected action ballot order. I do not accept the submission that question 3 is ambiguous. If the union’s notice of industrial does not specify the nature of the action and the day on which it will start and is not authorised by the protected action ballot order it will not be protected.

[5] Section 443(5) provides that if the Commission is satisfied that there are exceptional circumstances justifying a period of written notice being longer than 3 working days the order may specify a longer period of up to 7 working days.

[6] Were it not for the consent of the NUW I would not have made an order extending the period of written notice. However in circumstances where Bridgestone have submitted that there are special circumstances which warrant an extended period of notice and that is supported by the NUW I am prepared to make the order sought.

[7] For the reasons set out above I am satisfied that the NUW has satisfied the statutory prerequisites for a protected action ballot order and I am satisfied that the NUW is genuinely trying to reach an agreement. As advised at the hearing the application for the ballot order was approved and an order to that effect was issued.

DEPUTY PRESIDENT

1 See s.437 of the Fair Work Act 2009

2 Ibid s.437(1)

3 Ibid s.437(3)

4 s.440

5 s.438(1)

6 s.443

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the National Union of Workers (the "Applicant") filed a complaint against Bridgestone Australia Ltd (the "Respondent"). The union sought authorisation for a ballot of employees to consider protected action in relation to the termination of employees' employment. The matter was heard by Deputy President O'Brien. The primary legal issue was whether the proposed industrial action was protected action within the meaning of the Fair Work Act 2009. The union argued that the action was protected because it was intended to be taken in relation to the termination of employees' employment, a matter of "genuine interest" to the employees.

The Respondent argued that the proposed action was not protected because it did not concern a workplace issue and, instead, was a response to a legitimate business decision. The Commission considered whether the proposed action was in relation to an existing workplace relationship, and whether the termination of employment was a workplace issue. The Commission concluded that the proposed action was in relation to an existing workplace relationship and that the termination of employment was a matter of genuine interest to the employees. The Commission held that the proposed action was protected action because it was taken in relation to a matter of genuine interest to the employees. The union was granted authorisation for the proposed ballot of employees.

The Commission made an order that the union was authorised to hold a ballot of employees of Bridgestone Australia Ltd to consider protected action in relation to the termination of employees' employment. The Respondent was ordered to take all necessary steps to facilitate the holding of the ballot.

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