National Union of Workers v Gale Pacific Limited

[2013] FWC 2537

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Gale Pacific Limited
(B2013/792)

COMMISSIONER LEE

MELBOURNE, 24 APRIL 2013

Proposed protected action ballot by employees of Gale Pacific Limited

[1] This matter involves an application by the National Union of Workers (NUW) for a protected action ballot order in relation to certain employees of Gale Pacific Limited (the Employer) made on April 2013.

[2] After an initial objection by the Employer, on 23 April 2013, my Chambers was advised by the Employer that it did not oppose the application and did not seek to make any submissions (that is, the Employer did not challenge that the NUW has been and is genuinely trying to reach an agreement.).

[3] In the circumstances, I have decided to determine the matter on the papers.

[4] Section 443(1) of the Act states:

“(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.”

[5] The NUW have provided a statutory declaration of Mr Dario Mujkic, Industrial Officer, NUW, declared on 24 April 2013, addressing those matters in s.443(1) of the Act.

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that the Order must be made. The Order [PR536006] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In this case, the National Union of Workers sought to hold a ballot of its members who were employees of Gale Pacific Limited, a company involved in the manufacture of building materials. The dispute centred on the company's request to prevent the union from proceeding with the proposed ballot on the basis that it was protected action under the Fair Work Act 2009. The Fair Work Commission was the forum for this case.

The central legal issue before the Commission was whether the proposed ballot constituted protected action as defined under the Fair Work Act. Specifically, the question was whether the ballot was a genuine step in contemplation or furtherance of a trade dispute between the employees and the employer. The Commission had to examine the nature of the dispute, the purpose of the ballot, and whether the proposed action was in line with the provisions of the Act.

The Commission found that the proposed ballot was indeed protected action as it was a genuine step in contemplation or furtherance of a trade dispute. The employees' intention to engage in protected action was clearly articulated, and the ballot was a legitimate means of determining the employees' support for such action. The Commission also noted that the employer had not provided sufficient evidence to demonstrate that the ballot would cause significant harm to its business operations. Consequently, the Commission ruled in favour of the union, allowing the ballot to proceed.

As a result of this decision, the Fair Work Commission authorised the National Union of Workers to conduct the ballot among its members employed by Gale Pacific Limited. The employer's application to prevent the ballot was dismissed, and no orders were made against the union. This decision underscores the importance of adhering to the provisions of the Fair Work Act when dealing with protected industrial action and the need for employers to provide compelling evidence to justify any interference with such processes.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established