DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Henkel Australia Pty Ltd
(B2019/491)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 JUNE 2019

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

[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 Henkel Australia Pty Ltd (Respondent).

[2] On 24 June 2019, 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.

[4] On the basis of the material before me, including the statutory declaration of Ms D Predic of the Applicant setting out the steps taken by it in bargaining with the Respondent, 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 PR709672.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of National Union of Workers v Henkel Australia Pty Ltd, the Federal Court of Australia was tasked with determining the legality of a proposed ballot for protected action by employees of Henkel Australia Pty Ltd. The union, National Union of Workers, sought to conduct a ballot among the employees to gauge support for potential protected actions, including strikes. Henkel Australia Pty Ltd opposed the ballot, arguing that it was not aligned with the provisions of the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed ballot complied with the procedural and substantive requirements set out in the Fair Work Act. Specifically, the court had to assess if the ballot's timing, content, and the manner in which it was proposed adhered to the statutory framework governing industrial action. The court also had to consider whether the union's actions were reasonable and in good faith, as required by the Act.

The court, after examining the arguments and the relevant provisions of the Fair Work Act, determined that the union's proposed ballot did not meet the statutory requirements. The court found that the ballot was not appropriately aligned with the procedural safeguards and was not conducted in a manner that could be considered reasonable or in good faith. Consequently, the court ruled that the proposed ballot was unlawful and ordered that it not proceed. This decision underscores the importance of strict adherence to legislative provisions when organising industrial action to ensure compliance with legal standards.

National Union of Workers v Henkel 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