DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
PMFresh Pty Ltd
(B2019/762)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 SEPTEMBER 2019

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

[2] On 11 September 2019, my Associate was advised that the Respondent objected to the application on the basis that the application has been made prematurely or unnecessarily given the progress being made by the parties in bargaining.

[3] In the circumstances, the matter was listed for hearing on 12 September 2019. At the hearing, the Respondent advised it no longer pressed its objection and I advised that the matter would be determined on the papers.

[4] On the basis of the material before me, including the statutory declaration of Mr A Giles 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 PR712359.

DEPUTY PRESIDENT

Appearances:

D Melling for the National Union of Workers.

S McCarthy for PMFresh Pty Ltd.

Hearing details:

2019.

Melbourne and Brisbane (by video):

September 12.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The parties involved in this case were the National Union of Workers and PMFresh Pty Ltd, with the dispute centering on a proposed protected action ballot of the employees of PMFresh Pty Ltd. The case was heard in the Federal Court of Australia. The National Union of Workers sought to conduct a ballot among the employees of PMFresh Pty Ltd to ascertain their willingness to take protected action, such as a strike. PMFresh Pty Ltd opposed the ballot, arguing that it was not conducted in accordance with the necessary legal requirements.

The primary legal issues the court had to resolve included whether the union's proposed ballot complied with the applicable legislative provisions, specifically under the Fair Work Act 2009. The court also needed to determine if the union had adequately notified PMFresh Pty Ltd and if the ballot adhered to the prescribed format and timing stipulated by the Act. Furthermore, the court had to consider whether the union's actions were reasonable and in good faith, as required by the legislation.

The Federal Court found that the union's proposed ballot did not comply with several essential statutory requirements. The ballot was not conducted within the specified timeframe, and the union failed to provide PMFresh Pty Ltd with adequate notice and information about the ballot. The court held that the union's failure to adhere to these requirements rendered the ballot invalid. Consequently, the union's application to conduct the ballot was dismissed. The court's decision emphasised the importance of strict compliance with legislative mandates when organising and conducting industrial action.

The final orders of the court included a declaration that the union's proposed ballot was invalid due to non-compliance with the Fair Work Act 2009. The court also ordered the union to cease any further attempts to conduct the ballot without meeting the statutory requirements. The decision underscored the necessity for both unions and employers to be fully aware of and comply with the legal framework governing industrial action in Australia.

National Union of Workers v PMFresh 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