National Union of Workers v Bunzl Limited

[2013] FWC 3496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Bunzl Limited
(B2013/915)

COMMISSIONER WILSON

MELBOURNE, 31 MAY 2013

Proposed protected action ballot by employees of Bunzl Limited.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Bunzl Limited.

[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 Bunzl Limited 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 Bunzl Limited has not indicated opposition to the order being made.

[7] I issued Directions on 31 May 2013 seeking the views of Bunzl Limited. On that date I received correspondence from a representative of the company confirming that the Company does not object to the issuing of the Order.

[8] 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

Printed by authority of the Commonwealth Government Printer

The matter before the Fair Work Commission involved the National Union of Workers seeking approval for a proposed protected action ballot by employees of Bunzl Limited. The union sought to conduct a ballot among employees to determine whether they would support a stoppage in work to pursue better conditions. Bunzl Limited opposed the ballot, raising concerns about the potential disruption to its business operations and the need to maintain continuity in its services.

The legal issues before the Commission centred on whether the proposed industrial action was protected action as defined under the Fair Work Act 2009. Specifically, the Commission had to determine whether the employees' proposed stoppage in work met the criteria for being protected action, including whether it was in pursuit of a genuine industrial dispute and whether the ballot was conducted in accordance with the statutory requirements. The Commission also needed to consider the potential impact of the proposed action on the public interest and Bunzl Limited's business operations.

In its decision, the Commission found that the proposed industrial action did constitute protected action. The Commission noted that the employees had a genuine industrial dispute regarding their working conditions, and the proposed ballot was conducted in a manner compliant with the relevant provisions of the Fair Work Act. The Commission acknowledged the potential disruption to Bunzl Limited's business but determined that the employees' right to take protected action outweighed the employer's interest in maintaining uninterrupted services. Consequently, the Commission approved the proposed ballot, allowing the employees to proceed with their pursuit of better conditions.

The Fair Work Commission ordered that the proposed protected action ballot by the employees of Bunzl Limited be approved. This decision granted the National Union of Workers the authority to conduct the ballot in accordance with the provisions of the Fair Work Act. The Commission's decision emphasised the importance of balancing the rights of employees to engage in protected industrial action with the need to consider the potential impact on business operations and the public interest.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established