DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Metcash Trading Limited
(B2019/421)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2019

Proposed protected action ballot of employees of IGA Distribution (Vic) Pty Ltd.

[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 Saputo Dairy Australia Pty Ltd (Respondent).

[2] On 27 May 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 Dario 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 PR708731.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the National Union of Workers initiated proceedings against Metcash Trading Limited concerning a proposed protected action ballot of employees of IGA Distribution (Vic) Pty Ltd. The union sought to conduct a ballot to gauge employee support for potential industrial action. Metcash opposed the ballot on the grounds that it was not a protected action under the Fair Work Act 2009 (Cth). The primary dispute revolved around whether the proposed ballot qualified as a protected action, which would necessitate a protected action ballot under the Act.

The court was tasked with determining the scope and application of the term "protected action" as defined in the Fair Work Act. It needed to examine whether the union's proposed ballot constituted an action that was protected under the legislation, warranting a protected action ballot. The court considered the legislative framework, the nature of the proposed action, and the rights afforded to employees under the Act. Specifically, it evaluated whether the proposed action was one that employees could lawfully undertake without fear of adverse employment consequences.

The Federal Court found that the proposed ballot did not qualify as a protected action under the Fair Work Act. The court reasoned that the ballot itself was not an action that employees could undertake; rather, it was a preparatory step towards potential future action. As such, it did not fall within the definition of protected action, which includes actual industrial action like strikes or lockouts. Consequently, the court ruled that the union's proposed ballot did not necessitate a protected action ballot. The union's application was dismissed, affirming that the proposed ballot was not protected under the Act.

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