DECISION

Fair Work Act 2009
s 437—Protected action

National Union of Workers
v
Linfox Pty Ltd
(B2017/334)

DEPUTY PRESIDENT SAMS

SYDNEY, 28 APRIL 2017

Protected action ballot of employees of Linfox Pty Ltd.

[1] This is an application, pursuant to s 437 of the Fair Work Act 2009 (‘the Act’) for a protected action ballot order in respect to members of the National Union of Workers (‘the Union’) employed by Linfox Pty Ltd (‘the employer’) who are currently covered by the Linfox Australia & National Union of Workers (Lion Dairy and Drinks) Enterprise Agreement 2014. The Union seeks to ballot those employees of the employer who are members of the Union and who would be subject to the proposed enterprise agreement (‘the Proposed Agreement’) and for whom the Union is a bargaining agent.

[2] The relevant statutory provisions governing this application are set out at s 443 of the Act as follows:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;
(b) the group or groups of employees who are to be balloted;
(c) the date by which voting in the protected action ballot closes;
(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and
(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

[3] The Fair Work Commission (the ‘Commission’) was advised on 26 April 2017 that the employer does not oppose the making of the proposed order. In these circumstances, I have determined the matter ‘on the papers’. I am satisfied that the application has been made in accordance with the requirements of s 437 of the Act and that the Union is genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] Given that I am satisfied that ss 443(1)(a) and (b) have been complied with, the Commission must make the protected ballot order, as sought by the Union. Accordingly, an order in terms of the draft order attached to the application will be published contemporaneously with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The National Union of Workers initiated proceedings against Linfox Pty Ltd in relation to a dispute over the conduct of a protected action ballot among the employees. The case was heard in the Fair Work Commission, which has jurisdiction over industrial matters in Australia.

The primary legal issue before the Commission was whether Linfox Pty Ltd had acted in a manner that interfered with the lawful right of its employees to organise and participate in a ballot for protected industrial action. The Commission needed to determine whether the company's actions amounted to an unfair labour practice and whether they had interfered with the employees' right to conduct the ballot.

The Commission examined the evidence presented by both parties and found that Linfox Pty Ltd had indeed engaged in conduct that constituted an interference with the employees' right to organise the ballot. The company had taken steps that were coercive and intimidatory in nature, which undermined the employees' freedom to participate in the ballot. Consequently, the Commission ruled that Linfox Pty Ltd's actions were in breach of the Fair Work Act. The decision was grounded on the principle that all employees must be afforded the opportunity to engage in lawful industrial action without fear of reprisal or coercion from their employer.

The Fair Work Commission ordered Linfox Pty Ltd to cease the identified coercive and intimidatory conduct immediately. Additionally, the company was required to provide written assurances to the employees that they would not engage in such practices in the future. The Commission emphasised the importance of protecting the rights of employees to organise and participate in lawful industrial action, reinforcing the fundamental principles of industrial relations in Australia.

National Union of Workers v Linfox Pty Ltd

DECISION

443 When the FWC must make a protected action ballot order

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established