DECISION

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

National Union of Workers
v
Mackay Consolidated Industries Pty Ltd
(B2016/1099)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 OCTOBER 2016

Proposed protected action ballot of employees of Mackay Consolidated Industries Pty Ltd.

[1] This is an application by the National Union of Workers (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Mackay Consolidated Industries Pty Ltd (the Respondent).

[2] On 17 October 2016 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 A Portelli of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR586548.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought to conduct a ballot of employees of Mackay Consolidated Industries Pty Ltd for the purpose of determining whether to engage in protected action. Mackay Consolidated Industries opposed the ballot, leading to a legal dispute that was heard by the Fair Work Commission. The central issue before the Commission was whether the proposed ballot constituted protected action under the Fair Work Act 2009 (Cth). Mackay Consolidated Industries argued that the ballot did not qualify as protected action because it was not related to an industrial dispute, as required by the legislation.

The Fair Work Commission examined the nature of the proposed ballot and whether it was genuinely intended to ascertain the employees' views on a matter of industrial significance. The Commission found that the ballot was indeed a genuine attempt to determine the employees' views on a proposed industrial dispute. It was not merely a preliminary step or a tactic to pressure the employer. The Commission was satisfied that the ballot related to a matter of genuine industrial concern and was, therefore, protected action under the Act. The Commission concluded that the proposed ballot was lawful and should proceed as planned.

Accordingly, the Fair Work Commission dismissed Mackay Consolidated Industries' application to prevent the ballot. The Commission's decision affirmed the right of the employees to engage in protected action and emphasised the importance of genuine employee involvement in industrial disputes. The Commission's ruling reinforced the legislative intent to protect the process of industrial democracy and the right of employees to organise and engage in collective action. The final orders of the Commission allowed the National Union of Workers to proceed with the proposed ballot, ensuring that the employees' voices could be heard in the matter of industrial concern.

National Union of Workers v Mackay Consolidated Industries Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established