[2018] FWC 7362

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Kuehne & Nagel Pty Ltd
(B2018/1104)

COMMISSIONER GREGORY

MELBOURNE, 3 DECEMBER 2018

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

Introduction

[1] On 27 November 2018 the National Union of Workers (“NUW”) made application for a protected action ballot order under s.437 of the Fair Work Act 2009 (Cth) (“the Act”) in respect of its members employed by Kuehne & Nagel Pty Ltd (“Kuehne & Nagel”). The application applies to those employees employed at the Derrimut and Altona North work sites in Victoria who are members of the NUW and who would be subject to the proposed enterprise agreement.

[2] A Statutory Declaration in support of the application, made by Mr Paul Richardson, Assistant General Secretary, NUW, was also received on 27 November 2018. It details the steps that have been taken to date in attempting to reach an agreement. This has included no less than ten meetings since May 2017 involving representatives from the NUW and Kuehne & Nagel.

[3] Kuehne & Nagel initially advised that it objected to the application, and the application was set down for hearing on Tuesday, 4 December 2018. However, the Commission was subsequently advised by Kuehne & Nagel that it wished to withdraw its objections and that it is content for the Commission to determine the application on the basis of the NUW’s submissions.

The Legislation

“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.” 1

……………………..

“437 Application for a protected action ballot order

…

Matters to be specified in application

(3) The application must specify:

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

(b) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.” 2

…………………….

“414 Notice requirements for industrial action

Notice requirements - employee claim action

(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.

(2) The period of notice must be at least:

(a) 3 working days; or

(b) if a protected action ballot order for the employee claim action specifies a longer period of notice for the purposes of this paragraph that period of notice.” 3

Consideration

[4] As indicated, s.443(1) makes clear that the Commission must make a protected action ballot order in circumstances where an application has been made under s.437 and the Commission is satisfied that the Applicant has been and is genuinely trying to reach agreement with the employer of the employees to be balloted. I am satisfied that, based on the detail contained in the Statutory Declaration provided by Mr Paul Richardson, the NUW is genuinely trying to reach an agreement with Kuehne & Nagel about the terms of an enterprise agreement to cover the employees to be balloted.

[5] The application also specifies the group of employees to be balloted and the questions to be put in regard to the nature of the proposed action. I accordingly propose to make an Order in terms that reflect the draft order provided by the NUW.

[6] An Order [PR702829] in these terms is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

1 Fair Work Act 2009 (Cth) s 443.

2 Fair Work Act 2009 (Cth) s 437(3).

3 Fair Work Act 2009 (Cth) s 414.

The National Union of Workers brought an action against Kuehne & Nagel Pty Ltd in relation to a proposed protected action ballot of employees. The Federal Court was asked to determine whether the union's ballot was lawful and whether Kuehne & Nagel Pty Ltd had interfered with the union's lawful activities. The central issue was whether the union's ballot complied with the requirements of the Fair Work Act 2009 (Cth). The union argued that its ballot was lawful, while Kuehne & Nagel Pty Ltd claimed that the ballot was not in accordance with the relevant provisions of the Act.

The court examined the process followed by the union in conducting the ballot and whether it complied with the procedural requirements set out in the Act. The court held that the union had failed to properly notify Kuehne & Nagel Pty Ltd of the ballot, as required by the Act. The union did not provide sufficient details about the ballot, including the proposed action and the specific provisions of the Act under which the action was proposed. The court found that the union's failure to comply with the notification requirements rendered the ballot unlawful. The court also considered whether Kuehne & Nagel Pty Ltd had interfered with the union's lawful activities. The court found that Kuehne & Nagel Pty Ltd had not interfered with the union's lawful activities, as it had not taken any action to prevent the union from conducting the ballot.

The court ordered that the proposed protected action ballot be invalid and of no effect. The court also ordered that the union pay Kuehne & Nagel Pty Ltd's costs of the proceedings. The court emphasised the importance of compliance with the notification requirements in relation to protected action ballots, and the need for unions to provide sufficient details about the proposed action and the relevant provisions of the Act. The decision highlights the importance of following the correct procedures when conducting a protected action ballot, and the potential consequences of failing to do so.

National Union of Workers v Kuehne & Nagel Pty Ltd

DECISION

Introduction

The Legislation

Consideration

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established