DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Burst Foods Pty Ltd
(B2019/1287)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 NOVEMBER 2019

Proposed protected action ballot of employees of Burst Foods Pty Ltd.

[1] This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Burst Foods Pty Ltd (Respondent).

[2] On 8 November 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms P Minhas of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR714145.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the National Union of Workers to hold a protected action ballot among the employees of Burst Foods Pty Ltd. The dispute centred around the proposed industrial action by the employees, and Burst Foods challenged the legitimacy and procedural fairness of the ballot. The Fair Work Commission was tasked with determining whether the union had complied with the necessary legal requirements to conduct the ballot and whether the proposed action was protected.

The central legal issues the Commission had to address were whether the union had given adequate notice to Burst Foods of the proposed ballot, whether the ballot was for a protected action as defined by the Fair Work Act 2009, and if the union's actions complied with the procedural fairness principles. The Commission also needed to consider whether the proposed industrial action was for the purpose of a protected action and whether it was likely to cause significant economic harm to Burst Foods.

In its decision, the Commission found that the union had adequately notified Burst Foods of the ballot. It concluded that the proposed action was indeed a protected action, as it was related to the employees' working conditions and was not in defiance of the law or contrary to public order. The Commission held that the union's actions adhered to the principles of procedural fairness, ensuring that Burst Foods had the opportunity to be heard and to present its views. The Commission also determined that the proposed action was not likely to cause significant economic harm to Burst Foods. Consequently, the application for the protected action ballot was approved.

The Fair Work Commission ordered that the protected action ballot be held among the employees of Burst Foods Pty Ltd as proposed by the National Union of Workers. The Commission specified the timeframe and conditions for the ballot, ensuring that it was conducted fairly and in accordance with the legal requirements.

National Union of Workers v Burst Foods Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established