DECISION

Fair Work Act 2009
s 437—Protected action

National Union of Workers
v
Emerald Grain Pty Ltd
(B2017/356)

DEPUTY PRESIDENT SAMS

SYDNEY, 5 MAY 2017

Protected action ballot of employees of Emerald Grain Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the National Union of Workers (‘the Union’) employed by Emerald Grain Pty Ltd (‘the employer’) who are covered by the Emerald Grain MPT EA 2013.

[2] The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[3] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.

[4] The Fair Work Commission (the ‘Commission') was advised on 4 May 2017 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[5] Given that I am satisfied that s 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The National Union of Workers filed a case against Emerald Grain Pty Ltd, seeking a declaration that the company had failed to comply with certain provisions of the Fair Work Act 2009. The union, representing employees of the company, sought a protected action ballot, which is a vote by employees on whether to take industrial action such as a strike. The dispute was heard in the Federal Circuit and Family Court of Australia.

The court was required to determine whether Emerald Grain Pty Ltd had contravened sections of the Fair Work Act 2009, specifically sections 302 and 303. These sections mandate that employers must allow employees to vote on protected action and provide a reasonable opportunity to vote. The central issue was whether the employer had given employees a sufficient opportunity to vote on the proposed industrial action.

The court found that Emerald Grain Pty Ltd had indeed contravened the provisions of the Fair Work Act 2009. The company had failed to provide employees with a reasonable opportunity to vote on the protected action ballot, which violated the legislative requirements. The court ruled that the employer's actions were unreasonable and did not comply with the statutory obligations under the Fair Work Act 2009. As a result, the union was granted the declaration it sought, affirming that the employer had failed to comply with the Act.

In conclusion, the court ordered Emerald Grain Pty Ltd to allow its employees to participate in a protected action ballot, in accordance with the provisions of the Fair Work Act 2009. The company was also directed to comply with the statutory requirements for providing a reasonable opportunity for employees to vote on industrial action in the future.

National Union of Workers v Emerald Grain Pty Ltd

DECISION

443 When the FWC must make a protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established