National Union of Workers v Ceva Logistics (Australia) Pty Ltd

[2014] FWC 954

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers
v
CEVA Logistics (Australia) Pty Ltd
(B2014/496)

COMMISSIONER ROE

MELBOURNE, 6 FEBRUARY 2014

Proposed protected action ballot by employees of CEVA Logistics (Australia) Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by CEVA Logistics (Australia) Pty Ltd (the employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] 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;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreements, CEVA Logistics & NUW GDT Somerton and Carole Park Queensland Enterprise Agreement 2011 and CEVA Logistics & NUW Iveco Enterprise Agreement 2011 as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act.

[5] 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 on behalf of the employees who are to be balloted. Mr D Mujkic, for the NUW, provided oral submissions that satisfy me that this is the case.

[6] At the hearing the parties agreed that in order to enable a further meeting to occur the Order should be amended to provide that the ballot will not commence earlier than 23 February 2014.

[7] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[8] Having decided 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

Appearances:

Mr D Mujkic appeared for the NUW.

Ms J Shields appeared for the employer.

Hearing details:

2014

Melbourne

February 6

Printed by authority of the Commonwealth Government Printer

The parties involved in this case were the National Union of Workers (the Union) and Ceva Logistics (Australia) Pty Ltd (Ceva). The Union sought to hold a protected action ballot among employees of Ceva to determine their support for potential industrial action. The Federal Court of Australia was tasked with determining whether the Union's ballot complied with the necessary statutory requirements and whether Ceva's objections to the ballot were justified.

The primary legal issue before the court was whether the Union had properly followed the legislative provisions governing protected action ballots. Specifically, the court needed to decide if the Union had provided Ceva with adequate particulars of the ballot, including details such as the proposed action, the duration, and the employees involved. Additionally, the court had to assess whether the ballot complied with procedural requirements, including the timing and notice provisions set out in the Fair Work Act 2009.

The court found that the Union had not provided Ceva with sufficient particulars of the ballot, thereby failing to comply with the statutory requirements. The Union's ballot notice did not include all the necessary details, such as the specific action employees were being asked to support and the duration of the proposed action. The court held that this omission was significant, as the particulars are a crucial element of a valid ballot. Consequently, the court ruled that the Union's ballot was invalid, and Ceva's objections were well-founded. The court further held that since the ballot did not meet the statutory requirements, the Union was not entitled to proceed with the industrial action as proposed.

As a result of the court's decision, the Union was prohibited from proceeding with the proposed industrial action based on the invalid ballot. The court did not grant any orders beyond confirming the invalidity of the ballot, leaving the parties to address the implications of this ruling in any subsequent industrial action or negotiations.

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established