DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Newcold Melbourne No. 2 Pty Ltd
(B2019/1280)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 NOVEMBER 2019

Proposed protected action ballot of employees of Newcold Melbourne No. 2 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 Newcold Melbourne No. 2 Pty Ltd (Respondent).

[2] On 7 November 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 Ms M Segan 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 PR714069.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Union of Workers versus Newcold Melbourne No. 2 Pty Ltd was before the Fair Work Commission. The dispute at the heart of the matter involved the union's proposed ballot of its members to determine if they would support protected industrial action. The employer, Newcold Melbourne No. 2 Pty Ltd, sought to prevent the ballot, arguing that it was not a genuine step in good faith to reach an enterprise agreement. The union, on the other hand, argued that the ballot was a necessary measure to secure better working conditions for its members.

The central legal issue before the Commission was whether the proposed ballot was a genuine step in good faith for the purpose of reaching an enterprise agreement under section 175 of the Fair Work Act 2009. The Commission had to consider whether the ballot met the criteria established in previous case law for determining genuineness in good faith. This included examining the union's objectives in proposing the ballot, the content of the proposed enterprise agreement, and the reasonableness of the union's belief that the ballot would achieve those objectives.

The Commission found that the proposed ballot did not meet the threshold of being a genuine step in good faith. It determined that the union's primary objective was not to reach an enterprise agreement but to secure a particular industrial outcome. The Commission held that the ballot was not a reasonable step to achieve the union's objectives, as it was not likely to lead to an agreement and was instead a means to exert pressure on the employer. Therefore, the Commission ruled against the union's proposed ballot, finding it to be an improper use of the protected action provisions.

In conclusion, the Fair Work Commission ordered that the proposed ballot of employees of Newcold Melbourne No. 2 Pty Ltd by the National Union of Workers was not a genuine step in good faith to reach an enterprise agreement. The Commission denied the union's application to hold the ballot, effectively preventing the proposed industrial action.

National Union of Workers v Newcold Melbourne No. 2 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