DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Mario Verrocchi & East Yarra Friendly Society Ltd t/a My Chemist Health & Beauty Distribution
(B2019/75)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 1 FEBRUARY 2019

Proposed protected action ballot of employees of Mario Verrocchi & East Yarra Friendly Society Ltd.

[1] 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 Mario Verrocchi & East Yarra Friendly Society Ltd t/a My Chemist Health & Beauty Distribution (the Respondent).

[2] On 31 January 2019, the Respondent advised my associate that it did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] I have considered the application and the statutory declaration of Mr Mathew Toner, an official of the National Union of Workers, which sets out the steps taken by the Applicant to try to reach agreement with the Respondent.

[5] 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.

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

[7] An Order has been separately issued in PR704459.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case between the National Union of Workers and Mario Verrocchi & East Yarra Friendly Society Ltd, trading as My Chemist Health & Beauty Distribution, was brought before the Fair Work Commission. The union had proposed a ballot for protected action, which the employer contested on the basis that the proposed ballot did not meet the statutory requirements for a protected action ballot. The union sought a declaration that the employer had not taken all reasonable steps to ensure that the ballot was properly conducted, and for an order for the employer to allow the ballot to proceed.

The legal issues that the Commission had to decide were whether the employer had taken all reasonable steps to ensure the ballot was conducted properly, and if not, whether the union was entitled to a declaration and an order for the employer to allow the ballot to proceed. The Commission had to consider the statutory requirements for a protected action ballot and whether the employer's actions in this instance met those requirements.

The Commission found that the employer had not taken all reasonable steps to ensure that the ballot was conducted properly. The employer had not provided the union with sufficient information to enable it to properly prepare its ballot materials, and had not provided the union with an opportunity to inspect the employer's records in relation to the employees who were to be balloted. The Commission concluded that the employer's actions did not meet the statutory requirements for a protected action ballot, and that the union was entitled to a declaration to that effect. The Commission also found that the union was entitled to an order for the employer to allow the ballot to proceed, subject to the union providing the employer with certain information in relation to the proposed ballot. The Commission noted that the employer had taken steps to address some of the issues that had been identified, and that it was in the interests of the parties to allow the ballot to proceed.

The Commission declared that the employer had not taken all reasonable steps to ensure that the ballot was conducted properly, and ordered the employer to allow the ballot to proceed, subject to the union providing the employer with certain information. The Commission also ordered the employer to provide the union with access to its records in relation to the employees who were to be balloted.

National Union of Workers v Mario Verrocchi & East Yarra Friendly Society Ltd t/a My Chemist Health & Beauty Distribution

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established