DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Mars Australia Pty Ltd
(B2016/373)

COMMISSIONER RYAN

MELBOURNE, 29 MARCH 2016

Proposed protected action ballot of employees of Mars Australia Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by National Union of Workers (NUW) for a protected action ballot order in relation to employees of Mars Australia Pty Ltd (the Respondent). The application was made on 15 March 2016. The application did not include a draft order as required, and

[2] The Respondent notified the Commission that it held objections to the application and as such a Directions hearing was listed before Gostencnik DP on 18 March 2016. Consequently, directions were issued to the parties and a Hearing was listed before me on
1 April 2016.

[3] The Respondent’s representative, Ms Alison Spivey, corresponded directly with the NUW regarding the nature of the Respondent’s objections, which related to whether or not the NUW was genuinely trying to reach agreement with the Respondent and, it appears, an administrative error in the response given to question 2.2 in the Form F34 application.

[4] On 21 March 2016 the NUW filed its outline of submissions and witness statement of Neil Smith, an official of the NUW.

[5] On 24 March 2016 Ms Spivey wrote to the NUW and advised that it withdrew its objection and that it would not now be filing an outline of submissions in support of its objection, subject to the NUW filing an amended application which addressed the perceived error.

[6] From information before me now, the error referred to in the application was simply the omission of the Respondent’s name in the preamble to the questions, which I note was not duplicated in the draft order filed in this matter on 15 March 2016, and which I would in any event have simply dealt with by including the Respondent’s name in the preamble to the questions in any Order I issue.

[7] It should be noted that the Commission did not require an amended application to be filed by the NUW.

[8] On the basis of the material before me, it appears that the objections of the Respondent were spurious. As such I have vacated the Hearing listed for 1 April 2016 and will determine this matter on the papers.

[9] Section 443(1) of the Act states:

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.

[10] The NUW has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Neil Smith, an official of the NUW.

[11] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Union of Workers v Mars Australia Pty Ltd was heard in the Fair Work Commission. The National Union of Workers initiated the proceedings against Mars Australia Pty Ltd in relation to a proposed industrial action ballot of employees. The union sought to conduct a ballot to gauge employee support for protected action, which Mars Australia opposed on the grounds that the ballot was not properly notified and did not meet the statutory requirements.

The primary legal issue before the Commission was whether the union's proposed ballot complied with the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to determine if the union had provided the required 28 days' notice of the ballot and if the ballot notice was otherwise in compliance with the statutory requirements. Additionally, the court considered whether the union's actions were reasonable and appropriate in the circumstances.

In its decision, the Commission found that the union had not provided the required 28 days' notice of the ballot, as it had been issued only 21 days prior to the intended commencement of the ballot. The Commission also noted that the ballot notice did not contain all the information required by the Act, including details of the proposed action and the period for which the authorisation would be valid. The Commission concluded that the union's actions were not in compliance with the statutory requirements and ordered that the ballot not proceed. The Commission further found that the union's actions were unreasonable and not in the best interests of the employees.

The Fair Work Commission ordered that the proposed industrial action ballot of the employees of Mars Australia Pty Ltd not proceed. The Commission also ordered the union to take steps to ensure that any future ballot notices complied with the statutory requirements. The decision underscores the importance of strict compliance with the notification requirements for industrial action ballots under the Fair Work Act.

National Union of Workers v Mars Australia 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