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
(B2018/73)

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 PR704455.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the National Union of Workers and Mario Verrocchi and East Yarra Friendly Society Ltd t/a My Chemist Health & Beauty Distribution. The dispute centred around a proposed protected action ballot of employees, specifically relating to their eligibility to participate in the ballot. The matter was heard in the Fair Work Commission. The legal issues before the Commission were whether the employees in question were genuinely eligible to participate in the ballot and whether they had been properly notified of the ballot.

The Commission began by examining the definition of "employee" under the Fair Work Act and considered the relevant case law. It was established that the employees had been engaged as independent contractors rather than employees. However, the Commission found that the employees had been under the control and direction of Mario Verrocchi and East Yarra Friendly Society Ltd to such an extent that they should be considered employees for the purposes of the ballot. The Commission further found that the employees had been properly notified of the ballot and were therefore eligible to participate. The Commission emphasised the importance of ensuring that employees are not unfairly excluded from protected action ballots.

The outcome of the case was that the employees were deemed eligible to participate in the ballot, and the Commission ordered that the ballot proceed as planned. The decision highlights the importance of correctly classifying workers and ensuring that they are properly notified of any protected action. The case serves as a reminder to employers to carefully consider the nature of their relationship with workers and to ensure compliance with relevant legislation.

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