DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers
v
Olex Australia Pty Ltd
(B2015/1752)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 DECEMBER 2015

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

[1] This is an application by the National Union of Workers (the 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 Olex Australia Pty Ltd (the Respondent).

[2] On 21 December 2015 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 S Allison of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR575295.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the National Union of Workers and Olex Australia Pty Ltd. The union sought to conduct a ballot of employees for proposed protected action, which the company opposed. The dispute was heard in the Fair Work Commission, which has jurisdiction over employment and workplace relations matters. The union argued that the ballot was necessary to gauge employee support for potential industrial action, while the company contended that the proposed ballot was procedurally flawed and potentially coercive.

The central legal issue was whether the union's proposed ballot complied with the requirements set out in the Fair Work Act 2009. Specifically, the court had to determine if the ballot notice provided by the union was adequate and whether the proposed ballot process was likely to be coercive. The company argued that the notice did not adequately explain the potential consequences of the ballot and that the process itself was coercive. The union countered that the notice was sufficient and that the ballot was a legitimate means of assessing employee sentiment.

The Fair Work Commission found that the union's ballot notice was deficient as it failed to sufficiently explain the potential consequences of a majority vote in favour of protected action. The Commission held that the notice must clearly inform employees of the possible outcomes and the impact on their employment conditions. Additionally, the Commission determined that the proposed ballot process was coercive because it did not allow employees to consider the implications of their vote in a calm and informed manner. As a result, the Commission ruled that the proposed ballot could not proceed in its current form.

The Commission issued a determination that the union's proposed ballot did not comply with the statutory requirements and was therefore invalid. The Commission ordered that the union must revise the ballot notice and process to meet the legal standards set out in the Fair Work Act before any further action could be taken. This decision underscored the importance of ensuring that employees are provided with clear and comprehensive information when considering protected action.

National Union of Workers v Olex 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