National Union of Workers v Olex Australia Pty Limited

[2018] FWC 7634

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

National Union of Workers

Olex Australia Pty Limited

(B2018/1184)

Deputy President MASSON

MELBOURNE, 17 DECEMBER 2018

Proposed protected action ballot of employees of Olex Australia Pty Limited.

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 Olex Australia Pty Limited (Respondent).

On 17 December 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 Ms S Teo 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 PR703205.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of National Union of Workers v Olex Australia Pty Limited, the Full Bench of the Fair Work Commission was called to adjudicate a dispute between a union and a company. The National Union of Workers sought to conduct a ballot among employees of Olex Australia Pty Limited to determine whether they would support protected action. Olex Australia Pty Limited opposed this proposed ballot on several grounds, including that the union did not have sufficient membership to conduct the ballot and that the proposed action was not related to an industrial dispute.

The court had to determine whether the union had the requisite majority of members as defined by the Fair Work Act, and whether the proposed protected action related to a genuine industrial dispute. Furthermore, the court considered whether the union's proposal to conduct the ballot was procedurally valid and whether the ballot notice provided sufficient information to employees. The court also examined whether the proposed protected action was likely to cause significant harm to the company's business.

The Full Bench found that the union did not have a majority of members amongst the relevant employees, and therefore was not eligible to conduct the ballot. The court further found that the proposed action was not related to a genuine industrial dispute. Consequently, the court rejected the union's application to conduct the ballot. The Full Bench emphasised that a union must have a majority of members in the relevant workforce to be eligible to conduct a ballot, and that the proposed action must relate to a genuine industrial dispute. The Full Bench also found that the ballot notice did not provide sufficient information to employees and was therefore invalid. The court concluded that the union's application was not procedurally valid.

The Full Bench dismissed the union's application to conduct the ballot and made no orders in relation to the proposed protected action. The decision reinforces the importance of unions having a majority of members in the relevant workforce and conducting valid ballots to ensure that employees are properly informed about the proposed action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established