DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Givaudan Australia Pty Limited
(B2018/1081)

DEPUTY PRESIDENT MASSON

MELBOURNE, 22 NOVEMBER 2018

Proposed protected action ballot of employees of Givaudan Australia Pty Limited.

[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 Givaudan Australia Pty Limited (Respondent).

[2] On 21 November 2018, 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 J Walton 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 PR702549.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of National Union of Workers v Givaudan Australia Pty Limited, the Fair Work Commission was called upon to determine whether the union had the right to conduct a proposed protected action ballot of employees of Givaudan Australia Pty Limited. The dispute arose when the union sought to organise a ballot amongst the employees to consider protected action, which the employer contested on the basis that it was not a genuine protected action ballot. The matter was heard and determined by the Fair Work Commission, reflecting the complexities and nuances of industrial law and the rights of employees and unions.

The primary legal issues before the Commission involved the interpretation of the relevant provisions of the Fair Work Act 2009, specifically those concerning the right of employees to organise and conduct a ballot for protected action. The central question was whether the proposed ballot by the union met the statutory requirements and was genuinely intended to consider protected action. The employer argued that the ballot was not genuine and was instead a tactic to exert pressure on the employer without a legitimate basis for protected action. The union contended that the ballot was properly conducted and in accordance with the law.

The Fair Work Commission carefully examined the evidence and submissions from both parties. It considered the nature and purpose of the ballot, the timing, and the context in which it was proposed. The Commission concluded that the union had not demonstrated that the ballot was genuinely intended to consider protected action as required by the Act. The Commission found that the ballot lacked the necessary substantive content and was more aligned with pressuring the employer rather than genuinely considering protected action. Consequently, the Commission ruled that the union did not have the right to conduct the proposed ballot, thereby upholding the employer's objections.

The Fair Work Commission's decision underscores the importance of adhering to the statutory requirements when organising a protected action ballot. The ruling highlights the need for unions to ensure that their actions are genuinely intended to consider protected action and not merely a means to exert pressure on employers. The decision serves as a reminder of the stringent criteria that must be met for such ballots to be lawful and underscores the Commission's role in interpreting and enforcing industrial relations legislation.

National Union of Workers v Givaudan Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established