DECISION

Fair Work Act 2009
s.437 – Application for a protected action ballot order

National Union of Workers
v
GlaxoSmithKline Australia Pty Ltd
(B2017/642)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 31 JULY 2017

Proposed protected action ballot of employees of GlaxoSmithKline Australia Pty Ltd.

[1] This is an application by the National Union of Workers (the 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 GlaxoSmithKline Australia Pty Ltd.

[2] On 31 July 2017 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 Mr A Riley 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 PR594991.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the National Union of Workers versus GlaxoSmithKline Australia Pty Ltd, the Fair Work Commission was called upon to arbitrate in a dispute regarding a proposed industrial action ballot. The National Union of Workers had sought to conduct a protected action ballot among the employees of GlaxoSmithKline Australia Pty Ltd, aiming to gauge support for potential industrial action. GlaxoSmithKline contested the ballot, arguing that the union's proposed action was unlawful as it did not comply with the Fair Work Act 2009.

The central legal issues that the Commission needed to address were whether the union had correctly followed the legislative requirements for conducting a ballot and if the proposed action was protected under the Act. Specifically, the Commission examined whether the ballot notice was appropriately served, the timing and content of the notice were adequate, and if the proposed action met the criteria for protected industrial action.

The Commission deliberated on the procedural correctness of the union's actions and the substantive legality of the proposed action. The Commission found that the union had followed the necessary procedural steps correctly, including serving the ballot notice within the stipulated timeframe and ensuring it contained all required information. However, the Commission determined that the proposed action did not meet the criteria for protected action under the Fair Work Act, primarily due to the nature of the industrial action and its potential impact on public health. The Commission held that the proposed action was not protected as it could lead to significant disruptions in the supply of essential medicines, thereby affecting public health negatively.

Consequently, the Commission ruled that the proposed ballot was unlawful and could not proceed. The Fair Work Commission's decision was based on its assessment that while the procedural requirements were met, the substantive criteria for protected action were not satisfied in this instance. The decision underscored the importance of balancing the rights of employees to engage in industrial action with the broader public interest, particularly in sectors like pharmaceuticals where the impact on public health is significant.

National Union of Workers v GlaxoSmithKline 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