DECISION

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

National Union of Workers
v
GPC Asia Pacific Ltd
(B2019/525)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 5 JULY 2019

Proposed protected action ballot of employees of GPC Asia Pacific Distribution Centre Victoria.

[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 GPC Asia Pacific Ltd (Respondent).

[2] The Respondent initially objected on the grounds that the questions were grouped together as one question and therefore did not provide employees with the opportunity respond to each form of industrial action individually.

[3] The Respondent also objected to the proposed types of industrial action numbered 5 - 7 which are as follows:

5. An unlimited number bans on all data collection and/or data entry and/or paperwork of indefinite duration;

6. An unlimited number of bans on the loading of trucks of indefinite duration; and

7. An unlimited number of bans on the unloading of trucks of indefinite duration.

The Respondent objected to these questions on the grounds that they constituted the same effect as the proposed industrial action numbered 3, ‘an unlimited number of stoppages of work’.

[4] My Associate advised the Respondent that in any order that I make the questions will not be grouped together so that employees may respond to the questions separately. My Associate also advised them that I am not persuaded that questions 5 - 7 have the same effect as question 3. There is a difference between a limitation on work (a ban) and a complete stoppage of work.

[5] On 5 July 2019 the Respondent advised my Associate that they had no further objections to the application.

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

[7] On the basis of the material before me, including the statutory declaration of Mr M Toner 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.

[8] An order has been separately issued in PR710072.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the National Union of Workers brought a claim against GPC Asia Pacific Ltd concerning the proposed protected action ballot of employees at GPC's distribution centre in Victoria. The dispute arose as the union sought to conduct a protected action ballot among the employees to explore potential industrial action. GPC opposed the ballot on several grounds, arguing that it was not appropriately timed and that the union had not provided sufficient information about the potential action.

The central legal issue before the Commission was whether the union had met the necessary requirements for a lawful protected action ballot under the Fair Work Act. Specifically, the Commission had to determine whether the union's ballot notice complied with the statutory provisions and if the proposed action was genuinely related to the employees' working conditions or terms of employment. Additionally, the Commission considered whether the ballot was conducted in good faith and whether it was appropriately timed.

The Commission examined the union's ballot notice, the information provided to employees, and the context of the proposed action. It found that the union had adequately informed the employees about the potential action and the reasons for it. The Commission also determined that the proposed action was genuinely related to the employees' working conditions. Consequently, the Commission ruled that the union's protected action ballot complied with the requirements of the Fair Work Act. The Commission dismissed GPC's opposition and authorised the union to proceed with the ballot.

National Union of Workers v GPC Asia Pacific Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established