DECISION

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

National Union of Workers
v
Saint Gobain Abrasives Pty Ltd
(B2014/1664)

COMMISSIONER ROE

MELBOURNE, 5 DECEMBER 2014

Proposed protected action ballot of employees of Saint Gobain Abrasives Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Saint Gobain Abrasives Pty Ltd (the employer). The application is made pursuant to Section 437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply Section 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.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(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.”

[4] To begin, I am satisfied that the Application has been made in accordance with Section 437 of the Act. I am satisfied that the Application was not made earlier than 30 days prior to the nominal expiry date of the current agreement, Saint-Gobain Warehousing Collective Agreement 2011, as required by Section 438 of the Act. I am satisfied that the employer received the Application as required by Section 440 of the Act. My Associate received advice from Ms Di Sebastiano, that the employer was not opposing the application. I therefore decided to deal with the Application on the papers.

[5] 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 on behalf of the employees who are to be balloted. The NUW provided submissions in the application that satisfy me this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The questions adequately specify the nature of the proposed industrial action and meet the requirements of Section 443(3)(d). The draft order therefore adequately describes the group of employees to be balloted as required by Section 443(3)(b). The AEC will be the ballot agent.

[7] Having decided that Section 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 case of National Union of Workers v Saint Gobain Abrasives Pty Ltd, the applicants sought to conduct a ballot of employees for potential protected industrial action. The respondents, Saint Gobain Abrasives Pty Ltd, opposed the ballot on the grounds that it did not comply with statutory requirements. The matter was heard in the Federal Court of Australia, with Justice Bromberg presiding.

The central legal issues revolved around whether the ballot notice given by the union was sufficient under the relevant provisions of the Fair Work Act 2009. Specifically, the court needed to determine if the notice provided adequate detail and timing to allow employees to make an informed decision. The court also had to consider whether the union had complied with the procedural requirements set forth in the Act.

Justice Bromberg ruled in favour of the applicants, determining that the ballot notice was adequate and met the statutory requirements. The judge emphasised the importance of employees being given sufficient information and time to decide on participating in protected action. The court found that the notice provided by the union was clear and allowed employees to make an informed choice. As a result, the applicants were granted permission to proceed with the ballot.

The court's decision highlights the importance of adhering to statutory requirements when organising industrial action. Employers and unions must ensure that all procedural steps are followed to avoid challenges to the validity of a ballot. This case provides clarity on the expectations for ballot notices and reinforces the need for detailed and timely information to be provided to employees.

National Union of Workers v Saint Gobain Abrasives 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