DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
International Flavours & Fragrances (Australia) Pty Ltd
(B2014/1652)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 5 DECEMBER 2014

Proposed protected action ballot of employees of International Flavours and Fragrances (Australia) Pty Ltd.

[1] This decision concerns an application by the National Union of Workers (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 International Flavours & Fragrances (Australia) 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 approximately nine occasions since 20 June 2014 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 2 December 2014 I was advised by Ms A. Harrington, the Human Resources Manager, Oceania of the Respondent, that the Respondent objected to a number of the questions to be put to the employees. Those objections largely went to concerns regarding the potential impact of some of the forms of protected industrial action contemplated by the ballot questions.

[4] In those circumstances, I convened a hearing on 5 December 2014 to assist in determining the matter.

[5] At the hearing Ms Harrington pointed out that the NUW’s Statutory Declaration contained an error in that the log of claims had been served on the Respondent on 19 August 2014 and not 20 June 2014. Ms Harrington stated that there were four outstanding issues and negotiations were still proceeding.

[6] With regard to the applications, s.443(1) of the Act provides that:

“(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.”

[7] Further, s.441(1) of the Act requires that the Fair Work Commission “must, as far as practicable, determine an application for a protected action ballot order within two working days after the application is made.”

[8] At the hearing the Respondent did not dispute that bargaining had commenced, nor did it dispute that the NUW was genuinely trying to reach an agreement.

[9] Against that background, and having considered all of the issues canvassed at the hearing, at conclusion of the hearing I advised the parties that I was satisfied that the requirements of s.443(1) of the Act had been met and that I therefore was required to issue the order sought by the NUW. The order [PR558661] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

Appearances:

A. Grogan for the National Union of Workers.

A. Harrington and A. Dent for International Flavours and Fragrances (Australia) Pty Ltd.

Hearing details:

2014.

Melbourne:

December 5.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers (NUW) sought a declaration that the International Flavours and Fragrances (Australia) Pty Ltd (IFF) was required to facilitate a protected action ballot of its employees. The Fair Work Commission and the Federal Court both heard the matter. The dispute centred on whether IFF was required to provide access to its employees to the union for the purpose of conducting a ballot for a protected action, and whether the union had the right to be accompanied by a bargaining representative during the ballot. The Commission held that IFF was not required to facilitate the ballot, and the union had no right to be accompanied by a bargaining representative during the ballot. The NUW appealed to the Court, contending that the Commission had erred in its interpretation of the relevant legislative provisions.

The Court considered whether the provisions of the Fair Work Act required IFF to facilitate the ballot and whether the union had the right to be accompanied by a bargaining representative. The Court found that the Commission had not erred in its interpretation of the relevant provisions and dismissed the appeal. The Court held that IFF was not required to facilitate the ballot and that the union had no right to be accompanied by a bargaining representative. The Court found that the legislative provisions did not impose an obligation on IFF to facilitate the ballot, and that the union's right to conduct a ballot was not absolute and was subject to the rights of the employer.

The Fair Work Commission's decision was affirmed, and the appeal was dismissed with costs. The Court held that the Commission's interpretation of the relevant legislative provisions was correct and that there was no error in law. The Court found that IFF was not required to facilitate the ballot and that the union had no right to be accompanied by a bargaining representative during the ballot. The appeal was dismissed, and the decision of the Commission was upheld. The Court did not make any orders regarding costs.

National Union of Workers v International Flavours & Fragrances (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