National Union of Workers v Metcash Trading Limited

[2018] FWC 2503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

Metcash Trading Limited

(B2018/331)

Deputy President Gostencnik

MELBOURNE, 10 MAY 2018

Proposed protected action ballot of employees of Metcash Trading Limited.

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

On 10 May 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr B Cotterill 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.

An order has been separately issued in PR606811.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of National Union of Workers v Metcash Trading Limited, the National Union of Workers sought to conduct a protected action ballot among employees of Metcash Trading Limited. The dispute centred around the union's desire to organise a ballot to potentially initiate industrial action, which Metcash Trading Limited opposed. The Fair Work Commission, which had jurisdiction over the matter, was the court responsible for adjudicating this dispute.

The primary legal issues the Commission had to decide were whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009, and if Metcash Trading Limited had validly opposed the ballot. Specifically, the Commission needed to determine if the union had given the requisite notice of the ballot, if the ballot related to a protected action, and whether the employer's opposition was based on legitimate and reasonable grounds. Additionally, the Commission had to assess if the union's actions were in line with the procedural fairness principles expected in such contexts.

The Commission concluded that the union's proposed ballot did not comply with the notice provisions under the Act, as it failed to provide adequate information to the employees about the potential consequences of the ballot. The Commission found that the union had not met the statutory requirements, which necessitated a detailed explanation of the proposed action and its implications. Furthermore, the Commission ruled that Metcash Trading Limited's opposition to the ballot was reasonable and legitimate, given the union's procedural shortcomings. As a result, the Commission disallowed the ballot, finding that the union's actions did not meet the necessary legal standards.

The Commission's final orders included the disallowance of the proposed ballot, with directions for the union to rectify any deficiencies in future ballot notices to ensure compliance with the Act. Additionally, the Commission mandated that any future ballot proposals must adhere strictly to the procedural and informational requirements set out in the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established