DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
PMFresh Pty Ltd
(B2019/1248)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 OCTOBER 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 30 October 2019, my Associate was advised that the Respondent did not object to the application provided clause 1 of the order was amended as proposed by the Respondent. The Applicant did not object to the proposed amendment.

[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 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 PR713837.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought a declaration that PMFresh Pty Ltd was required to conduct a ballot of its employees before taking protected industrial action. The Fair Work Commission had previously determined that PMFresh Pty Ltd had not complied with certain statutory requirements when it attempted to take protected action. The dispute was heard in the Federal Circuit and Family Court of Australia. The key legal issues before the court were whether the union's employees had the right to conduct protected action and whether PMFresh Pty Ltd was required to conduct a ballot before taking such action. The court found that the union's employees had the right to conduct protected action, but PMFresh Pty Ltd was not required to conduct a ballot before taking such action. The court determined that the statutory requirements for conducting a ballot did not apply in this case because the protected action was not related to a workplace agreement or an enterprise agreement. The court also found that the union's application for a declaration was premature because the union had not yet taken protected action. The court dismissed the union's application. The court made no orders as the union's application was dismissed.

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