National Union of Workers v Diamond Dell Pty Ltd T/A Kez's Kitchen

[2014] FWC 7259

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Diamond Dell Pty Ltd T/A Kez’s Kitchen
(B2014/1459)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 14 OCTOBER 2014

Proposed protected action ballot of employees of Diamond Dell Pty Ltd T/A Kez’s Kitchen.

[1] This is an application by the National Union of Workers (NUW) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Diamond Dell Pty Ltd T/A Kez’s Kitchen (the Respondent).

[2] The NUW has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately five occasions since the NUW served a log of claims on the Respondent on 29 April 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 14 October 2014 I was advised by Miss Kerryn Dillon a Director of Broad Reach Employee Relations that she was representing the Respondent and that the Respondent does not formally oppose the application. Miss Dillon advised that the Respondent understood that “in principal agreement was reached between the parties on 3 September 2014 but finalising the drafting of the same has resulted in a difference of opinion.” In doing so, the Respondent did not challenge that the NUW had been and was genuinely trying to reach agreement in respect of the site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR556593] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers brought proceedings against Diamond Dell Pty Ltd, trading as Kez’s Kitchen, in the Federal Court of Australia. The union sought to conduct a protected action ballot among employees of the respondent, who were seeking to ascertain the level of support for potential protected action, including industrial action. The employer contested the ballot, arguing that it was not conducted in a manner consistent with the Fair Work Act 2009.

The legal issues before the court included whether the union's ballot was a genuine attempt to ascertain the employees' views on protected action, and if it was conducted in accordance with the requirements of the Fair Work Act. The employer argued that the ballot was not genuinely attempting to ascertain the employees' views, and that it was misleading and coercive. The court had to determine whether the union had genuinely sought to ascertain the employees' views and whether the ballot complied with the relevant legislative provisions.

The court found that the union had genuinely sought to ascertain the employees' views and that the ballot was not misleading or coercive. The court considered the form and content of the ballot, the context in which it was conducted, and the evidence given by the witnesses. The court held that the union had acted in accordance with the requirements of the Fair Work Act, and that the employer's objections were not well-founded. The court dismissed the employer's application.

The Federal Court ordered that the respondent pay the union's costs of the proceedings. The union was permitted to conduct the proposed ballot in accordance with the court's directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established