National Union of Workers v E Karras Refrigerated Transport Pty Ltd Summary

[2013] FWC 3272

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
E Karras Refrigerated Transport Pty Ltd
(B2013/899)

COMMISSIONER WILSON

MELBOURNE, 23 MAY 2013

Proposed protected action ballot by employees of E Karras Refrigerated Transport Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by E Karras Refrigerated Transport Pty Ltd.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees of E Karras Refrigerated Transport Pty Ltd who will be covered by the proposed enterprise agreement and for whom the NUW is their bargaining representative.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] The next matter to which attention must be given is whether or not the Applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In this matter, I have no reason to believe that is not the case as E Karras Refrigerated Transport Pty Ltd has not indicated opposition to the order being made.

[7] I issued Directions on 23 May 2013 seeking the views of E Karras Refrigerated Transport Pty Ltd. On that date I received correspondence from a representative of the company confirming that the Company does not object to the issuing of the Order.

[8] Having decided all of these matters, and that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of National Union of Workers versus E Karras Refrigerated Transport Pty Ltd was heard before the Fair Work Commission. The dispute arose when the employees of E Karras, represented by the National Union of Workers, sought to conduct a ballot for proposed protected industrial action. E Karras objected to the ballot on the grounds that it did not comply with the procedural requirements stipulated in the Fair Work Act 2009. The crux of the matter lay in whether the union had followed the correct process in seeking to organise the ballot and if the company's objections were justified.

The legal issues before the Commission centred on the interpretation and application of the relevant sections of the Fair Work Act, particularly those concerning the requirements for a protected action ballot. The primary question was whether the union had provided the employer with sufficient information to enable the employer to make an informed decision on the proposed action, as well as whether the ballot notice was properly drafted and delivered. The Commission needed to determine whether the union's actions complied with the legislative framework governing industrial action in Australia.

The Commission examined the procedural steps taken by the union in detail, considering the adequacy of the information provided to E Karras and the form and content of the ballot notice. It found that while the union had taken reasonable steps to inform the employer, there were deficiencies in the detail and specificity of the information provided, which impacted the employer's ability to respond meaningfully. The Commission concluded that the union's procedural shortcomings warranted a rejection of the ballot application, as the employer's rights to be adequately informed and to respond were not fully respected. Consequently, the Commission dismissed the union's application for a protected action ballot.

National Union of Workers v E Karras Refrigerated Transport Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established