National Union of Workers v Regal Cream Products Pty Ltd Summary

[2014] FWC 7540

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Regal Cream Products Pty Ltd
(B2014/1489)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 24 OCTOBER 2014

Proposed protected action ballot of employees of Regal Cream Products Pty Ltd.

[1] This is an application by the National Union of Workers (NUW) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Regal Cream Products Pty Ltd (the Respondent).

[2] The NUW has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately six occasions since June 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 22 October 2014 I was advised by Mr Dan Feldman of HR Legal, who act for Regal Cream Products Pty Ltd, that the Respondent does not intend to lodge an objection to the NUW’s application. In doing so, the Respondent did not challenge that the NUW had been and was genuinely trying to reach agreement in respect of the site.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR556971] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers initiated proceedings against Regal Cream Products Pty Ltd in the Federal Court of Australia. The union sought a declaration that a proposed protected action ballot of employees of Regal Cream Products Pty Ltd, intended to ascertain the employees' support for potential industrial action, was lawful. The ballot was proposed to be conducted through the distribution of ballot papers to employees' homes, with a deadline for the return of the completed ballots set for a specific date. Regal Cream Products Pty Ltd opposed the union's application, arguing that the proposed method of conducting the ballot was not in accordance with the applicable industrial relations legislation and industrial instruments.

The court was required to determine whether the proposed method of conducting the ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth) and associated regulations. Specifically, the court needed to consider whether the proposed method of distributing ballot papers to employees' homes and setting a deadline for their return was an appropriate means of conducting a protected action ballot. The court also needed to consider whether the proposed method of conducting the ballot was in accordance with any applicable industrial instruments, such as the relevant enterprise agreement or award.

The court found that the proposed method of conducting the ballot was not in accordance with the relevant provisions of the Fair Work Act 2009 (Cth) and associated regulations. The court held that the distribution of ballot papers to employees' homes was not an appropriate means of conducting a protected action ballot, as it did not provide an opportunity for employees to consider the ballot papers in a private and uninterrupted manner. The court also found that the proposed method of conducting the ballot was not in accordance with any applicable industrial instruments. As a result, the union's application for a declaration that the proposed method of conducting the ballot was lawful was dismissed. The court did not make any orders in relation to the proceedings.

National Union of Workers v Regal Cream Products Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established