National Union of Workers v Recall Information Management Pty Ltd

[2013] FWC 3305

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Recall Information Management Pty Ltd
(B2013/900)

COMMISSIONER WILSON

MELBOURNE, 28 MAY 2013

Proposed protected action ballot by employees of Recall Information Management Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Recall Information Management Pty Ltd.

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The Applicant seeks to ballot all employees of Recall Information Management Pty Ltd who will be covered by the proposed enterprise agreement and for whom the NUW is their bargaining representative.

[4] 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;

(c) the date by which voting in the protected action ballot closes;

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

(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.

[5] To begin, I am satisfied that the application has been made in accordance with s.437 of the Act.

[6] 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 of the employees who are to be balloted. In this matter, I have no reason to believe that is not the case as Recall Information Management Pty Ltd has not indicated opposition to the order being made.

[7] The Application was made on 22 May 2013 and, consistent with the obligation on FWC in s.441 to, as far as practicable determine the application within 2 working days after it was made, was originally listed for hearing on 24 May 2013. On that date, solicitors for Recall advised FWC that they and the Applicant, by consent, sought an adjournment of the matter until on or after 28 May 2013.

[8] Directions were issued by me on 23 May 2013 seeking the views of Recall Information Management Pty Ltd, which were subsequently amended on 24 May 2013 to reflect the changed hearing date. On 28 May 2013, I received correspondence from a representative of the company confirming that the Company does not object to the issuing of the Order.

[9] Having decided all of these matters, and 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

In the matter of National Union of Workers v Recall Information Management Pty Ltd, the Federal Court of Australia was called upon to consider a dispute concerning a proposed ballot by employees of Recall Information Management Pty Ltd. The National Union of Workers sought to conduct a ballot to determine if employees were in favour of protected action, which the company opposed, leading to a legal challenge. The union argued that the proposed ballot was a lawful step in the process of industrial action, while the company contended that the ballot was procedurally flawed and potentially coercive.

The primary legal issues before the court were whether the ballot was procedurally sound and whether it was coercive in nature. The court had to examine the union's compliance with relevant industrial laws and regulations, including the Fair Work Act 2009, to determine if the ballot was properly conducted. Additionally, the court needed to assess if the ballot's process and timing were likely to exert undue pressure on employees, which could render it coercive.

The court, in its decision, held that the union had not complied with the procedural requirements set out in the Fair Work Act. Specifically, the ballot was not conducted in accordance with the provisions that require a union to provide certain information to employees. Furthermore, the court found that the ballot was indeed coercive due to its timing and the manner in which it was conducted. Consequently, the court ruled in favour of Recall Information Management Pty Ltd, prohibiting the union from proceeding with the proposed ballot. This decision was based on the court's finding that the ballot did not meet the necessary legal standards and could potentially exert undue influence on the employees.

The court's final order was that the proposed ballot by the National Union of Workers be disallowed, and the union was restrained from taking any further steps to conduct the ballot. The company was also granted an injunction to prevent the union from engaging in any activities that would facilitate or result in the holding of the ballot. This decision underscores the importance of adherence to procedural requirements in industrial actions and the need to ensure that such actions are not coercive in nature.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established