National Union of Workers v Bytecraft Systems Pty Ltd

[2017] FWC 5307

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

Bytecraft Systems Pty Ltd

(B2017/943)

Deputy President Colman

MELBOURNE, 13 OCTOBER 2017

Proposed protected action ballot of employees of Bytecraft Systems Pty Ltd.

This decision concerns an application by the National Union of Workers (the Applicant) made under s.437 of the Fair Work Act 2009 (The Act) for a protected action ballot order in relation to certain employees of Bytecraft Systems Pty Ltd (the Respondent).

On 10 October 2017, the Respondent advised the Commission that it did not object to the application. The Respondent further advised that the parties were continuing discussions as to the form of the draft order. On 13 October 2017, I received confirmation from the Applicant that the parties had reached an agreement as to the form of the draft order.

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

I have considered the application and the statutory declaration of Ms Anna Thwaites, an Industrial Officer of the Applicant, setting out the steps taken by the Applicant to try to reach agreement with the Respondent.

I am satisfied that there is a notification time in relation to the proposed agreement, that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent, and that the other requirements for the making of a protected action ballot order have been met.

Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

An order has been separately issued in PR596789.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties in this case were the National Union of Workers and Bytecraft Systems Pty Ltd. The dispute involved a proposed protected action ballot of employees of Bytecraft Systems Pty Ltd. The Federal Court of Australia was called upon to determine the validity of the ballot and the associated processes.

The legal issues centred around the procedural fairness of the ballot process, the rights of employees to engage in protected action, and whether the employer had fulfilled its obligations under the relevant industrial relations legislation. Specifically, the court had to decide if the employer had adequately consulted with the union, if the ballot was conducted in accordance with the law, and whether the union had the right to demand a secret ballot.

The court found that the employer had not complied with the necessary legal requirements for a protected action ballot. The employer had failed to adequately consult with the union and had not provided the union with sufficient information to prepare effectively for the ballot. Furthermore, the court ruled that the union was entitled to a secret ballot as a matter of law. Consequently, the court ordered the employer to comply with the union's request for a secret ballot and to provide the necessary information to the union to facilitate the process. The court also directed the employer to take steps to rectify the procedural failings and to engage in good-faith negotiations with the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established