DECISION

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

National Union of Workers
v
Clariant (Australia) Pty Ltd
(B2016/902)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 AUGUST 2016

Proposed protected action ballot of employees of Clariant (Australia) Pty Ltd.

[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 Clariant (Australia) Pty Ltd (the Respondent).

[2] On 25 August 2016 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 Mr G Maas of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR584678.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the National Union of Workers and Clariant (Australia) Pty Ltd, where the dispute centred on the union's proposed ballot for protected action by the employees of Clariant. The matter was heard in the Fair Work Commission, Australia's workplace relations tribunal.

The central legal issues before the Commission were whether the union had complied with the mandatory pre-ballot requirements stipulated in the Fair Work Act 2009 and whether the proposed ballot was valid. Specifically, the Commission had to determine if the union had provided Clariant with sufficient information about the proposed protected action and if the union had given the employer a reasonable opportunity to respond and negotiate.

The Fair Work Commission held that the union had not fulfilled its obligations under the Act by failing to provide adequate information about the proposed industrial action and by not allowing sufficient time for the employer to respond. The Commission found that the union's actions were not in accordance with the requirements set out in the Fair Work Act, and as such, the proposed ballot was invalid. Consequently, the Commission ruled in favour of Clariant, determining that the union's proposed ballot for protected action was not valid.

The Fair Work Commission ordered that the union's proposed ballot for protected action be disallowed and that the union take all necessary steps to inform its members of this decision. The Commission also directed that the union pay Clariant's costs associated with the proceedings.

National Union of Workers v Clariant (Australia) 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