DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Fenner Dunlop Australia Pty Ltd
(B2019/620)

COMMISSIONER YILMAZ

MELBOURNE, 7 AUGUST 2019

Proposed protected action ballot of employees of Fenner Dunlop Australia Pty Ltd.

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

[2] On 6 August 2019, the Respondent initially advised the Commission that it wished to be heard on the issue of whether the Applicant has been genuinely trying to reach agreement. However, on 7 August 2019, the Respondent advised in writing that it has reviewed its options in respect to the application and withdraws its objection and request to be heard.

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

[4] The statutory declaration of Ms Shara Teo of the Applicant sets out the steps taken by the Applicant in bargaining with the Respondent and that the Applicant has been, and is genuinely trying to reach agreement with the Respondent. On the basis of all the material that is before me, 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 PR711116.

COMMISSIONER

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CaseChat Overview and Summary

In the case of National Union of Workers v Fenner Dunlop Australia Pty Ltd, the dispute centred around a proposed industrial action ballot by the employees of Fenner Dunlop Australia Pty Ltd. The matter was heard in the Federal Court of Australia. The National Union of Workers sought to conduct a ballot among the employees for a potential protected action, which Fenner Dunlop opposed, arguing that the ballot process was not in compliance with the Fair Work Act 2009.

The central legal issues revolved around the procedural requirements for conducting a protected action ballot under the Fair Work Act. Specifically, the court had to determine whether the union had adhered to the necessary statutory provisions and whether the ballot notice given to Fenner Dunlop complied with the prescribed format and content. Furthermore, the court needed to assess whether there were any grounds to intervene under section 465 of the Act to prevent the ballot from proceeding.

The court examined the statutory framework and found that the union had not strictly complied with the requirements for the ballot notice. The notice did not include certain mandatory information as prescribed by the Act, such as the proposed action and the specific demands. Consequently, the court ruled that the ballot could not proceed as it was not valid under the Act. The court emphasised that compliance with the statutory provisions is crucial to ensure transparency and fairness in the industrial relations process. Given the non-compliance, the court granted an order preventing the ballot from proceeding.

The final orders of the court included a declaration that the proposed ballot was invalid due to non-compliance with the Fair Work Act and an injunction restraining the union from proceeding with the ballot. The court's decision underscored the importance of strict adherence to the statutory requirements for industrial action to maintain the integrity of the industrial relations system.

National Union of Workers v Fenner Dunlop Australia 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