DECISION

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

National Union of Workers
v
CHEP Australia Limited
(B2015/1356)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 SEPTEMBER 2015

Proposed protected action ballot of employees of CHEP Australia Limited – Derrimut.

[1] This is 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 CHEP Australia Limited – Derrimut (the Company).

[2] On 29 September 2015 my associate was advised that the Company 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 Mr A Portelli of the Applicant setting out the steps taken by it in bargaining with the Company and that it has been, and is, genuinely trying to reach agreement with the Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been issued separately in PR572418.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the National Union of Workers and CHEP Australia Limited, specifically regarding a proposed protected action ballot of employees at the Derrimut facility. The employees were seeking to conduct a protected action, which is an industrial action authorised by the Fair Work Act 2009. CHEP Australia Limited sought to prevent this action, arguing that the ballot was unlawful and that the union had not followed the correct procedures.

The central legal issue was whether the union had properly followed the procedural requirements set out in the Fair Work Act for conducting a protected action ballot. The court had to determine if the union's ballot process was in accordance with the legislation and if the procedural fairness was maintained throughout the process. The validity of the union's claims and the rights of the employees to take protected action were also considered.

In delivering the judgment, the court examined the procedural steps taken by the union in organising the ballot. It was determined that the union had failed to provide CHEP Australia Limited with a reasonable opportunity to respond to the ballot notice, which was a critical procedural requirement. The court found that the union's actions were not in compliance with the Fair Work Act and, as a result, the proposed ballot was unlawful. The court emphasised the importance of procedural fairness in industrial relations and noted that the union's failure to follow the prescribed procedures invalidated the ballot.

The court declared that the proposed protected action ballot was unlawful due to procedural irregularities. As a result, the employees were not authorised to proceed with the industrial action. The union was required to ensure that any future ballots complied with the procedural requirements of the Fair Work Act to avoid similar issues.

National Union of Workers v Chep Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established