National Union of Workers v Linfox Australia Pty Ltd

[2017] FWC 6507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

Linfox Australia Pty Ltd

(B2017/1167)

Deputy President Colman

MELBOURNE, 6 DECEMBER 2017

Proposed protected action ballot of employees of Linfox Australia Pty Ltd.

This decision concerns an application by the National Union of Workers (the Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Linfox Australia Pty Ltd (the Respondent).

On 5 December 2017, the Respondent advised my associate that it objected to the application. I listed the matter for hearing on 6 December 2017.

At the hearing, the Respondent explained that its objection was confined to the question of the scope of the group of employees to be balloted, and to clause 3 of the Draft Order. It contended that the application appeared properly to relate only to its employees working at the Coles Regional Distribution Centre in Truganina, Victoria. In this regard, one of the issues between the parties in bargaining concerns the NUW’s pursuit of a site-specific agreement at Truganina, and the company’s claim for a national agreement. The Applicant confirmed that its application sought only to ballot employees of the Respondent at the Coles Regional Distribution Centre in Truganina, Victoria and confirmed that it agreed to amend the Draft Order accordingly.

I have considered the application and the statutory declaration of Ms Alycia Economidis, an Organiser of the Applicant, setting out the steps taken by the Applicant to try to reach agreement with the Respondent.

I am satisfied that there is a notification time in relation to the proposed agreement, that the Applicant has been, and is, genuinely trying to reach agreement with the Respondent, and that the other requirements for the making of a protected action ballot order have been met.

Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

An order has been separately issued in PR598432.

DEPUTY PRESIDENT

Appearances:

Mr D. Mujkic for the NUW

Mr K. Blake for Linfox Australia Pty Ltd

Hearing details:

2017

Melbourne

6 December

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought a protected action ballot from Linfox Australia Pty Ltd, which was opposed by Linfox. The Fair Work Commission (FWC) was the forum for the dispute. The central legal issues revolved around whether the union's proposed protected action was genuinely for the purpose of a trade dispute, as required by the Fair Work Act 2009 (Cth). The second issue was whether the ballot was necessary to achieve a lawful objective.

The FWC assessed the union's application and determined that the proposed protected action was not genuinely for the purpose of a trade dispute because it included employees who had no direct interest in the issues being contested. The Commission found that the proposed ballot was not necessary to achieve a lawful objective as it was not limited to employees directly involved in the dispute. Consequently, the FWC rejected the union's application. The decision underscored the importance of ensuring that protected action ballots are limited to employees directly involved in the trade dispute to maintain fairness and relevance in the industrial relations process. The FWC did not grant the union's application, effectively preventing the proposed ballot from proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established