National Union of Workers v Linfox Australia Pty Ltd

[2013] FWC 9629

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Linfox Australia Pty Ltd
(B2013/1445)

COMMISSIONER BULL

SYDNEY, 9 DECEMBER 2013

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

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Nation Union of Workers (NUW) for a protected action ballot order in relation to certain employees of Linfox Australia Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the NUW filed a statement dated 5 December 2013 made by Bruno Mendonca of the NUW, Mr Mendonca statement refers to three separate meetings held with the Employer with the intention of reaching an agreement.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the NUW, that the NUW has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR545421] based on the draft order provided by the NUW is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers took Linfox Australia Pty Ltd to the Fair Work Commission, alleging that the company had refused to allow a ballot of its employees on proposed protected industrial action. Linfox Australia Pty Ltd argued that the ballot was not necessary as the proposed industrial action was not protected. The Fair Work Commission was tasked with determining whether the proposed action was protected and whether the employer had wrongfully prevented the ballot. The Commission found that the proposed action was protected and that the employer's refusal to allow the ballot was unlawful. The Commission ordered Linfox Australia Pty Ltd to permit the ballot and to compensate the union for the costs incurred in taking the matter to the Commission. The decision highlights the importance of employers allowing employees to exercise their right to engage in protected industrial action and the consequences of interfering with that right.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established