DECISION

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

National Union of Workers
v
Kwik-Lok Australia Pty Ltd
(B2015/1479)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 OCTOBER 2015

Proposed protected action ballot of employees of Kwik-Lok Australia Pty Ltd.

[1] This is an application by the National Union of Workers (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Kwik-Lok Australia Pty Ltd (the Respondent).

[2] On 21 October 2015 my associate was advised that the Respondent did not object to the application save for an amendment to the fifth question in the protected action ballot order to state as follows ‘An unlimited number of bans on paperwork, with the exception of paperwork required for workplace health and safety reasons, of indefinite duration’.

[3] On 22 October 2015 my associate was advised that the Applicant did not object to the amendment to the fifth question as proposed by the Respondent.

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

[5] On the basis of the material before me, including the statutory declaration of Mr A Snowball of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[6] An order has been separately issued in PR573215.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought a declaration that proposed protected action by employees of Kwik-Lok Australia Pty Ltd was validly called. The dispute arose when the employees intended to conduct a protected action ballot to seek better terms and conditions of employment. The matter was heard in the Fair Work Commission. The primary issue before the Commission was whether the proposed protected action was validly called and if it complied with the provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot notice and the form of the ballot complied with the legislative requirements and if the union's actions were procedurally fair.

The Fair Work Commission examined the form and content of the ballot notice and the ballot itself to ensure they met the statutory requirements. The Commission found that the ballot notice was deficient in that it did not specify the matters in dispute and did not provide a clear and concise summary of the proposed action. Consequently, the Commission determined that the proposed protected action was not validly called because it did not comply with the necessary legislative provisions. The Commission emphasised the importance of procedural fairness and the need for precise and clear communication to the employees about the proposed action.

As a result of the findings, the National Union of Workers' application for a declaration that the proposed protected action was validly called was dismissed. The Fair Work Commission made an order that the proposed protected action was not validly called due to the deficiencies in the ballot notice and the form of the ballot. The Commission's decision underscores the importance of strict compliance with the legislative requirements for conducting a protected action ballot.

National Union of Workers v Kwik-Lok 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