DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Emergent Cold Pty Ltd
(B2019/519)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 JULY 2019

Proposed protected action ballot of employees of Emergent Cold Pty Ltd.

[1] This is an application by the National Union of Workers (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Emergent Cold Pty Ltd (Respondent).

[2] On 3 July 2019, 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 Anna Thwaites of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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 PR710008.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers brought an application before the Fair Work Commission (FWC) seeking authorisation for a protected action ballot among the employees of Emergent Cold Pty Ltd. Emergent Cold, a meat processing company, opposed the ballot on the basis that the proposed industrial action could result in serious harm to its business and to the broader community. The FWC was tasked with determining whether the proposed industrial action was protected action under the Fair Work Act 2009, and if so, whether authorisation for the ballot should be granted.

The primary legal issue before the FWC was whether the proposed industrial action constituted protected action under the Fair Work Act. Additionally, the FWC had to consider whether the potential harm to Emergent Cold and the broader community outweighed the employees' right to engage in protected action. The FWC assessed the nature of the industrial action, the potential impact on the employer and the community, and the employees' rights to engage in protected action.

In delivering its decision, the FWC concluded that the proposed industrial action did constitute protected action under the Fair Work Act. The FWC found that the employees had a legitimate interest in pursuing the industrial action to address their concerns regarding working conditions and terms of employment. However, the FWC also recognised the potential harm that the industrial action could cause to Emergent Cold and the broader community, including disruptions to the supply chain and potential food safety issues. Weighing these factors, the FWC determined that the potential harm did not outweigh the employees' right to engage in protected action and authorised the ballot.

The FWC's final order authorised the National Union of Workers to conduct a protected action ballot among the employees of Emergent Cold Pty Ltd, allowing them to proceed with the proposed industrial action.

National Union of Workers v Emergent Cold 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