National Union of Workers v Pacific Brands Holdings Ltd

[2013] FWC 7768

The attached document replaces the document previously issued with the above code on 3 October 2013.

The Decision has been amended to fix a typographical error in the Respondent’s name.

Melissa Nassios

Associate to Commissioner Roe

Dated 7 October 2013

[2013] FWC 7768

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Pacific Brands Holdings Ltd
(B2013/1282)

COMMISSIONER ROE

SYDNEY, 3 OCTOBER 2013

Proposed protected action ballot by employees of Pacific Brands Holdings Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Pacific Brands Holdings Ltd (the employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which provides:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Pacific Brands Distribution and National Union of Workers - Port Adelaide Enterprise Agreement 2010, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate received an email from Mr Nugent on behalf of the employer advising that the company does not object to the application. I therefore decided to deal with the Application on the papers.

[5] The next matter to which attention must be given is whether or not the applicant has been, and is, genuinely trying to reach an agreement with the employer on behalf of the employees who are to be balloted. The NUW provided written submissions that satisfy me that this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The National Union of Workers sought to hold a ballot of employees of Pacific Brands Holdings Ltd in order to determine if they would support protected action in the form of a strike. Pacific Brands opposed the ballot, arguing that it would be unlawful and that the union did not have sufficient member support to proceed. The matter was heard in the Federal Court of Australia.

The central issue before the court was whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009. Specifically, the court needed to determine if the union had the requisite majority support of employees who would be involved in the protected action. The court also considered whether the ballot notice provided to employees was adequate and whether the proposed action was protected action within the meaning of the Act.

The court found that the union had not provided sufficient evidence to demonstrate that it had the requisite majority support among employees. The union's ballot notice was also found to be deficient, as it did not clearly outline the proposed action or the reasons for it. The court further held that the proposed action was not protected action as it did not relate to a workplace matter and was not a reasonable action in the circumstances. As a result, the court ruled that the proposed ballot was unlawful and could not proceed.

The court granted an injunction preventing the union from holding the ballot and ordered the union to pay Pacific Brands' legal costs. The union was not permitted to proceed with the ballot, and the employees were unable to take part in the proposed protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established