DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
NOV Australia Pty Ltd
(B2019/185)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 MARCH 2019

Proposed protected action ballot of employees of NOV Australia 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 NOV Australia Pty Ltd (Respondent).

[2] On 8 March 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 J Wells 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 PR705665.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent decision of National Union of Workers v Nov Australia Pty Ltd, the Federal Court was tasked with determining whether the proposed industrial action by employees of Nov Australia Pty Ltd was lawful. The employees, represented by the National Union of Workers, sought to conduct a ballot to determine their support for protected action, which Nov Australia Pty Ltd sought to prevent. The dispute centred on the procedural and substantive requirements for conducting a protected action ballot under the Fair Work Act 2009.

The legal issues before the court involved the interpretation of sections of the Fair Work Act, specifically regarding the procedural requirements for a lawful ballot and the substantive criteria that must be met for such action to be protected. The court had to consider whether the union's ballot complied with the legislative requirements, including the necessity of providing specific details to the employer and ensuring the ballot was conducted in good faith. Additionally, the court needed to assess whether the proposed action was related to a workplace matter and whether it complied with the act's provisions.

In its decision, the court examined the procedural steps taken by the union and found that the ballot did not comply with the statutory requirements. The court emphasised that the union must provide the employer with particulars of the proposed action, which had not been adequately done. The court also highlighted the importance of good faith in the conduct of the ballot, a criterion that was not met in this instance. Consequently, the court ruled that the proposed ballot was not lawful, as it did not adhere to the necessary procedural and substantive requirements under the Fair Work Act.

The final orders of the court included an injunction preventing the union from proceeding with the proposed ballot and a declaration that the ballot did not meet the legal standards required for protected industrial action. This decision underscores the importance of strict compliance with legislative provisions when organising and conducting industrial action.

National Union of Workers v Nov 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