National Union of Workers v De'Longhi Australia Pty Ltd

[2014] FWC 5099

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
De'Longhi Australia Pty Ltd
(B2014/170)

VICE PRESIDENT HATCHER

SYDNEY, 29 JULY 2014

Proposed protected action ballot by employees of De'Longhi Australia Pty Ltd.

[1] On 25 July 2014 the National Union of Workers (the applicant) made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to employees of De’Longhi Australia Pty Ltd (the respondent) at its worksite at Nexus Park, Unit 3A/43 Lyn Parade, Prestons NSW 2170 who are members of the applicant and for whom the applicant is a bargaining representative in respect of a proposed enterprise agreement.

[2] On 28 July 2014 Mr Chris Galwey, Supply Chain Manager for the respondent, provided advice by email on behalf of the respondent that it did not oppose the making of the order sought by the applicant in its application.

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

[4] The application was supported by a statement made by Mr Justin Cody, an employee of the applicant, dated 25 July 2014. On the basis of the matters set out in that statement, I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR553644] based on the draft order provided by the applicant will be issued in conjunction with this Decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought to conduct a ballot of employees of De'Longhi Australia Pty Ltd with respect to proposed protected action. De'Longhi opposed the ballot on the basis that the union had not provided sufficient particulars of the protected action and the reasons for it. The matter was heard in the Fair Work Commission, the relevant industrial tribunal in Australia. The central legal issue before the Commission was whether the union had provided sufficient particulars to the employer as required by section 376 of the Fair Work Act 2009 (Cth). Specifically, the Commission had to determine whether the union's notice of the proposed action provided sufficient information to allow De'Longhi to understand the nature of the proposed action and the reasons for it.

The Fair Work Commission held that the union had not provided sufficient particulars of the proposed action. The Commission found that the union's notice was vague and did not provide adequate information about the nature of the proposed action or the reasons for it. The Commission noted that the union had provided some details about the proposed action, such as the proposed industrial action and the employees involved, but that this was not sufficient. The Commission held that the union's notice did not provide sufficient information to allow De'Longhi to understand the nature of the proposed action and the reasons for it, and therefore the union had not complied with section 376 of the Fair Work Act. As a result, the Commission refused the union's application to conduct the ballot.

The Fair Work Commission ordered that the application for a ballot of employees be refused. The Commission held that the union had not provided sufficient particulars of the proposed action and the reasons for it, and therefore the application should be refused. The Commission did not make any other orders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established