DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

National Union of Workers
v
Ross Cosmetics Australia Pty Ltd
(B2016/818)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 JULY 2016

Proposed protected action ballot of employees of Ross Cosmetics Australia Pty Ltd.

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

[2] On 26 July 2016 my associate was advised that the Respondent did not object to the application.

[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 Portelli of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR583349.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the National Union of Workers versus Ross Cosmetics Australia Pty Ltd, the Fair Work Commission was called upon to address a dispute involving a proposed industrial action ballot by the employees of Ross Cosmetics Australia Pty Ltd. The employees, represented by the union, sought to conduct a protected action ballot to gauge their support for potential industrial action. Ross Cosmetics Australia Pty Ltd opposed this action, asserting that the ballot did not meet the procedural requirements set out under the Fair Work Act 2009. The Commission was tasked with determining whether the ballot complied with the statutory obligations and if the union had acted within its rights.

The central legal issue before the Commission was whether the union had correctly followed the procedural steps required to conduct a lawful protected action ballot. This involved scrutiny of the union's notification to Ross Cosmetics Australia Pty Ltd and the adequacy of the ballot process in accordance with the Fair Work Act. The Commission had to consider whether the union's actions were consistent with the statutory requirements and whether the employer's objections were valid. The interpretation of the relevant sections of the Act, particularly regarding the timing and content of the ballot notice, was pivotal in resolving this dispute.

The Commission found that the union had not strictly adhered to the procedural requirements for conducting a protected action ballot. While the union's intention to involve employees in the decision-making process was commendable, the ballot notice did not contain all the necessary information as mandated by the Fair Work Act. The Commission held that the procedural shortcomings rendered the ballot invalid and, therefore, the union's actions did not comply with the Act. Consequently, the employer's objections were upheld, and the proposed ballot was disallowed. The decision underscored the importance of meticulous compliance with the statutory procedures for protected action ballots to ensure the validity of the union's actions.

The Commission ordered that the proposed protected action ballot by the National Union of Workers be invalidated. The union was directed to refrain from proceeding with the ballot and to provide Ross Cosmetics Australia Pty Ltd with a corrected ballot notice that met all the statutory requirements. The Commission's decision emphasised the necessity for unions to follow the prescribed procedures meticulously to avoid similar issues in the future. This ruling served as a reminder of the importance of compliance with the Fair Work Act in industrial relations matters.

National Union of Workers v Ross Cosmetics Australia 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