National Union of Workers v LD & D Milk Pty Ltd

[2013] FWC 4702

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
LD & D Milk Pty Ltd
(B2013/1030)

National Union of Workers
v
LD & D Milk Pty Ltd (Milk)
(B2013/1032)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JULY 2013

Proposed protected action ballots by employees of LD & D Milk Pty Ltd and LD & D Milk Pty Ltd (Milk).

[1] These are applications 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 LD & D Milk Pty Ltd and LD & D Milk Pty Ltd (Milk) (the respondent).

[2] On 12 July 2013 my associate wrote to the respondent by email asking if they intended to oppose the applications and advising that if it was not opposed the matter could be dealt with on the papers but if they did oppose the applications the matter would be listed for a hearing. Later that afternoon Mr Joshua Norton, the Workplace Relations Leader: Vic/Tas/SA of the respondent, wrote advising that the company was currently considering its position in relation to the application and had written to the NUW seeking clarification and some suggested alterations to the form of the proposed order to clarify the nature of the industrial action being proposed and to address health and safety of the public.

[3] On 15 July 2013 Mr Adam Portelli from the NUW advised by email that he had spoken with Mr Norton who was willing to consent to the applications on the condition that one of the questions be removed from the applications which the NUW was willing to do. Mr Norton later confirmed this.

[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 unchallenged submissions 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 the requirements in s.443(1) of the Act have been met. Accordingly, I will make orders. The orders [PR538940 and PR538941] are based on the draft orders provided by the NUW with its application but does not include proposed paragraph 3.2 of the draft order as in my view, no utility is served by including that paragraph in the final order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers brought an action against LD & D Milk Pty Ltd, an employer, in the Fair Work Commission. The dispute arose when the employer proposed to conduct protected action ballots among its employees, which the union contested. The union claimed that the employer's proposed ballots were not in accordance with the relevant provisions of the Fair Work Act 2009. The central legal issues before the Commission were whether the employer had correctly identified the relevant bargaining representatives for the purposes of the proposed ballots and whether the employer had provided adequate information to the employees to enable them to make an informed decision about the proposed ballots.

The Commission found that the employer had not correctly identified the relevant bargaining representatives. The employer had nominated the National Union of Workers as the bargaining representative, but the union had not been officially recognised as the relevant bargaining representative for the proposed industrial action. The Commission held that the employer had not provided the employees with adequate information to make an informed decision about the proposed ballots. The employer had not provided information about the potential consequences of the proposed industrial action, which was a requirement under the Fair Work Act 2009. The Commission found that the employer's failure to provide adequate information to the employees rendered the proposed ballots invalid.

The Commission ordered that the proposed ballots be withdrawn and that the employer take all necessary steps to ensure that any future ballots are conducted in accordance with the Fair Work Act 2009. The Commission also ordered that the employer provide adequate information to the employees to enable them to make an informed decision about any future ballots. The decision highlights the importance of employers correctly identifying bargaining representatives and providing adequate information to employees before conducting protected action ballots.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established