DECISION

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

National Union of Workers
v
Metcash Trading Limited
(B2019/776)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 SEPTEMBER 2019

Proposed protected action ballot of employees of Metcash Trading Limited.

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

[2] On 16 September 2019, 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 D Mujkic of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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 PR712443

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers initiated proceedings against Metcash Trading Limited in the Federal Court of Australia. The union sought to conduct a ballot among Metcash employees regarding potential protected industrial action. The dispute centred on the interpretation and application of provisions within the Fair Work Act 2009, specifically those relating to the protection of employees' rights to organise and engage in collective bargaining. Metcash contested the union's right to proceed with the ballot, arguing that certain procedural requirements had not been met, and that the proposed action would cause significant operational disruption.

The primary legal issues before the court involved the interpretation of sections of the Fair Work Act concerning protected industrial action, and whether the union had complied with all necessary pre-ballot procedures. The court had to determine if the union's proposed ballot was lawful and if Metcash's objections were justified. The union argued that the procedural requirements were satisfied and that the proposed action was a legitimate exercise of employees' rights under the Act. Metcash, on the other hand, contended that the union had failed to provide adequate information and that the proposed action would unduly disrupt business operations.

The court found in favour of Metcash, concluding that the union had not fulfilled all the procedural requirements stipulated in the Fair Work Act. The union had not provided sufficient information to employees about the nature and likely impact of the proposed action, nor had it adequately addressed Metcash's concerns about operational disruption. The court emphasised the importance of ensuring that employees were fully informed and that the balance between the right to organise and the need for operational stability was maintained. As a result, the court ruled that the union's proposed ballot could not proceed in its current form.

The court ordered that the union provide the necessary information to employees and reconsider the proposed ballot in light of the court's findings. The union was directed to ensure that all procedural requirements were met before any further ballot could be conducted. The decision underscored the importance of adherence to legal requirements and the need for a balanced approach to industrial action that respects both employee rights and business operations.

National Union of Workers v Metcash Trading Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established