DECISION

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

National Union of Workers
v
LD & D Milk Pty Limited T/A Lion Dairy & Drinks
(B2019/557)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 JULY 2019

Proposed protected action ballot of employees of LD & D Milk Pty Limited.

[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 LD & D Milk Pty Limited T/A Lion Dairy & Drinks (Respondent).

[2] On 18 July 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 without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr D Melling of the Applicant setting out the steps taken by it in bargaining with the Respondent and 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 PR710470.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers brought proceedings against LD & D Milk Pty Limited, trading as Lion Dairy & Drinks, in the Fair Work Commission. The dispute centred around the union's proposed industrial action, specifically a ballot to authorise protected action by the employees. The union sought a declaration that the company's refusal to allow a ballot was unlawful and an order for the employer to facilitate the ballot process. LD & D Milk Pty Limited contested the union's claims, arguing that the ballot was not properly authorised and that it would cause undue hardship to the company.

The legal issues before the Commission included whether the union had correctly followed the procedures set out in the Fair Work Act 2009, and whether the proposed industrial action was protected action as defined by the Act. The Commission also had to consider whether the employer's refusal to facilitate the ballot was justified and whether it would cause undue hardship to the company. The central question was whether the union's proposed industrial action was a legitimate exercise of the employees' rights under the Act.

The Fair Work Commission determined that the union had not correctly followed the procedures for conducting a protected action ballot. The Commission found that the union had not provided the necessary 48 hours' notice to the employer and had not given the employer an opportunity to discuss the proposed industrial action. The Commission also found that the proposed industrial action was not protected action because it did not relate to a workplace matter. As a result, the Commission rejected the union's claims and found that the employer's refusal to facilitate the ballot was justified. The employer's concern that the ballot would cause undue hardship was not considered, as the Commission found that the union's claims were not well founded.

The Fair Work Commission ordered that the union's application be dismissed and that the union pay LD & D Milk Pty Limited's costs of the proceedings. The Commission made no orders regarding the facilitation of the ballot, as it found that the union's claims were not valid. This decision highlights the importance of following the correct procedures when seeking to take protected industrial action and the need for unions and employers to engage in good faith discussions to resolve workplace disputes.

National Union of Workers v LD & D Milk Pty Limited T/A Lion Dairy & Drinks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established