DECISION

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

National Union of Workers
v
Corvina Quality Foods Pty Ltd
(B2016/543)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 MAY 2016

Proposed protected action ballot of employees of Corvina Quality Foods Pty Ltd who are members of the National Union of Workers and who would be subject to the proposed enterprise agreement.

[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 Corvina Quality Foods Pty Ltd (the Respondent).

[2] On 18 May 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 Ms H Miflin 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 PR580490.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The National Union of Workers sought to conduct a ballot of employees of Corvina Quality Foods Pty Ltd who were members of the union, in relation to a proposed protected action ballot. Corvina Quality Foods Pty Ltd opposed the ballot, claiming it was not a protected action as the proposed enterprise agreement had not been negotiated in good faith. The case was heard in the Fair Work Commission.

The central issue was whether the ballot was protected action under the Fair Work Act 2009. The question of whether the proposed enterprise agreement had been negotiated in good faith was critical. If the agreement had not been negotiated in good faith, the ballot would not be protected action. The Commission had to determine if the employer's conduct during the negotiation process was in accordance with the principles of good faith bargaining.

The Fair Work Commission found that the employer had not engaged in good faith bargaining, as it had failed to provide information, refused to discuss issues, and had made unilateral decisions. The employer's conduct was inconsistent with the principles of good faith bargaining and amounted to a failure to negotiate in good faith. The Commission concluded that the proposed enterprise agreement had not been negotiated in good faith, and therefore, the ballot was not protected action.

The Fair Work Commission ordered that the employer provide the union with the information it had requested, and that the employer and the union resume negotiations in good faith. The Commission also ordered that the employer pay the union's costs of the proceedings.

National Union of Workers v Corvina Quality 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