National Union of Workers v GPC Asia Pacific Pty Ltd

[2013] FWC 6067

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
GPC Asia Pacific Pty Ltd
(B2013/1158)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 23 AUGUST 2013

Proposed protected action ballot by employees of GPC Asia Pacific Pty Ltd.

[1] This is an application by the National Union of Workers (the NUW) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of GPC Asia Pacific Pty Ltd (the respondent).

[2] The NUW has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on no less than three occasions since 17 May 2013 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement

[3] On 22 August 2013 I was advised by Ms Vanessa Tooley, the Human Resource Manager of the respondent, that it was aware of the application and would not oppose the application. In doing so, the respondent did not challenge that the NUW had been and was genuinely trying to reach agreement.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR540658] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers filed proceedings against GPC Asia Pacific Pty Ltd in the Fair Work Commission, seeking to compel the employer to allow a proposed protected action ballot. The union represented employees who were contemplating taking protected industrial action, including a strike, against the employer. The crux of the dispute was whether the employer had provided sufficient information to the union to allow it to assess the validity of the employees' claims and whether the employer had unreasonably withheld consent for the ballot. The Commission was tasked with determining whether the employer's actions were justified and whether the union's request for the ballot was reasonable.

The central legal issues before the Commission were whether the employer had failed to provide adequate information to the union to enable a meaningful assessment of the employees' claims and whether the employer had unreasonably refused to consent to the ballot. The Commission needed to consider the requirements of the Fair Work Act and relevant industrial relations principles to determine whether the employer had complied with its obligations to provide information and whether the union's request for a ballot was reasonable and justified. Additionally, the Commission had to assess whether the employer's refusal to consent to the ballot was in accordance with the law.

The Fair Work Commission found that the employer had not provided sufficient information to the union, which hindered the union's ability to assess the validity of the employees' claims. The Commission held that the employer's failure to provide adequate information was unreasonable and that the union's request for the ballot was justified. Consequently, the Commission ordered the employer to allow the union to conduct the proposed protected action ballot. The employer was found to have unreasonably withheld consent, leading to the Commission's decision in favour of the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established