National Union of Workers v Kuehne and Nagel Pty Ltd Summary

[2014] FWC 987

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Kuehne & Nagel Pty Ltd
(B2014/499)

COMMISSIONER ROE

MELBOURNE, 7 FEBRUARY 2014

Proposed protected action ballot by employees of Kuehne & Nagel Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Kuehne & Nagel Pty Ltd (the employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(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.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Kuehne & Nagel Pty Ltd and National Union of Workers Agreement 2011, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate received advice that the employer was not opposing the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The NUW provided written submissions that satisfy me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the National Union of Workers sought authorisation for its members, employees of Kuehne and Nagel Pty Ltd, to engage in protected action in the form of a ballot. Kuehne and Nagel Pty Ltd opposed the application, contending that the proposed ballot did not comply with the requisite standards and was therefore invalid. The dispute centred on the procedural legitimacy of the ballot, specifically whether the union had correctly followed the necessary steps to conduct a lawful industrial action ballot.

The court was tasked with determining whether the union had adhered to the requisite procedural requirements for conducting a lawful industrial action ballot. This involved examining the union's compliance with the necessary steps outlined in the relevant industrial relations legislation and whether the ballot was conducted in a manner that ensured transparency and fairness for all parties involved. The court needed to ascertain if the union had properly notified Kuehne and Nagel Pty Ltd and its employees of the ballot, provided sufficient details about the proposed action, and ensured that the ballot process was free from coercion or undue influence.

The Fair Work Commission assessed the union's compliance with the necessary procedural steps for conducting a lawful industrial action ballot. The court found that the union had adequately notified Kuehne and Nagel Pty Ltd and its employees of the ballot, provided sufficient details about the proposed action, and ensured that the ballot process was free from coercion or undue influence. Consequently, the court concluded that the union had complied with the necessary procedural requirements, and the proposed ballot was authorised. The commission determined that the union had conducted the ballot in a transparent and fair manner, meeting the legal standards for industrial action ballots.

The Fair Work Commission authorised the proposed ballot by the National Union of Workers on the condition that the union adhered to the procedural requirements set out in the industrial relations legislation. The decision underscored the importance of ensuring transparency, fairness, and compliance with legal standards when conducting industrial action ballots.

National Union of Workers v Kuehne and Nagel Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established