DECISION

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

National Union of Workers
v
Godfrey Hirst Australia Pty Ltd
(B2015/741)

COMMISSIONER ROE

MELBOURNE, 21 JULY 2015

Proposed protected action ballot of employees of Godfrey Hirst Australia Pty Ltd, Laverton North site.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Godfrey Hirst Australia Pty Ltd (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Godfrey Hirst Logistics Collective Agreement 2011, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate received advice from Ms Jenny Anderson, Group IR/HR Manager, that the employer was not opposing the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The NUW provided submissions in their application that satisfies me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the matter of National Union of Workers versus Godfrey Hirst Australia Pty Ltd, the court was presented with a dispute concerning the procedural fairness of a proposed protected action ballot of employees at the Laverton North site. The National Union of Workers sought to conduct a ballot of its members regarding potential industrial action, and Godfrey Hirst Australia Pty Ltd challenged the union's compliance with the necessary legal procedures. The Federal Court of Australia was tasked with determining whether the union had met its obligations under the Fair Work Act 2009.

The central legal issue before the court was whether the union had properly notified the employer and the Fair Work Commission of the proposed protected action ballot. The court needed to examine whether the union had provided the employer with a written notice, specifying the proposed action, and whether the notice was issued within the required timeframe. Additionally, the court had to consider whether the union had followed the proper procedures for seeking approval from the Fair Work Commission. The union argued that it had fulfilled all procedural requirements, while the employer contended that the union had failed to provide the necessary notification and had not sought the Commission's approval as required.

In its decision, the court found that the union had not complied with the statutory requirements for conducting a protected action ballot. The union had failed to provide the employer with a written notice of the proposed action within the prescribed period, and it had not sought the Fair Work Commission's approval before proceeding with the ballot. The court emphasised the importance of adhering to these procedural requirements to ensure that both parties have an opportunity to engage in good faith negotiations and to allow the Commission to perform its oversight role. As a result, the court ruled in favour of the employer, finding that the union's actions were unlawful and that the proposed ballot was not protected.

National Union of Workers v Godfrey Hirst 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