National Union of Workers v Grays (NSW) Pty Limited t/a Grays Online

[2014] FWC 4799

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Grays (NSW) Pty Limited t/a Grays Online
(B2014/162)

VICE PRESIDENT HATCHER

SYDNEY, 17 JULY 2014

Protected action ballot of employees of Grays (NSW) Pty Limited t/a Grays Online.

[1] On 16 July 2014 the National Union of Workers (the applicant) made an application under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to employees of Grays (NSW) Pty Limited t/a Grays Online (the respondent) at its worksite at 29-33 Carter Street Homebush NSW 2141 who are members of the applicant and for whom the applicant is a bargaining representative. The application of 16 July 2014 was subsequently amended by the applicant on 17 July 2014 pursuant to s.586 of the Act to correct an error in the stated name of the employer.

[2] On 17 July 2014 Ms Joanne van Hattum (Bailey), Human Resources Manager for the respondent, provided advice by email on behalf of the respondent that it did not oppose the making of the order sought by the applicant in its amended application.

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

[4] The amended application was supported by a statement made by Mr James Nero, an official of the applicant, dated 11 July 2014. On the basis of the matters set out in that statement, I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR553247] based on the amended draft order provided by the applicant will be issued in conjunction with this Decision.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of National Union of Workers versus Grays (NSW) Pty Limited trading as Grays Online, the court was tasked with determining whether the union's proposed protected action ballot was permissible under the relevant industrial legislation. The employees of Grays Online, represented by the National Union of Workers, sought to conduct a ballot to ascertain their support for protected industrial action, a move contested by the employer. The case was heard in the Fair Work Commission.

The primary legal issues before the court revolved around the procedural validity of the union's ballot and whether the ballot complied with the statutory requirements set forth in the Fair Work Act. Specifically, the court had to assess if the union's ballot notice was appropriately served and whether it met the legislative criteria for timing and content. Additionally, the court examined whether the employer had valid grounds to oppose the ballot, focusing on any potential detriment to the business operations that might result from the proposed industrial action.

The Fair Work Commission, in its decision, found that the union had not adhered to the statutory requirements for the ballot notice, as it was deemed to be deficient in certain respects. The court highlighted that the notice did not sufficiently inform employees about the potential consequences of the industrial action and failed to comply with the mandated content specifications. Consequently, the Commission ruled that the ballot could not proceed as it did not meet the legal standards for a protected action ballot. The court's ruling was grounded in a detailed examination of the legislative provisions and the procedural failings identified in the union's ballot notice.

As a result of the court's findings, the Commission determined that the employer's opposition to the ballot was well-founded, and the proposed ballot was consequently disallowed. The court's decision effectively prevented the employees from proceeding with the industrial action ballot, underscoring the importance of strict compliance with statutory requirements for such actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established