National Union of Workers v Sakata Rice Snacks Australia Pty Ltd Summary

[2013] FWC 5313

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Sakata Rice Snacks Australia Pty Ltd
(B2013/965)

COMMISSIONER JOHNS

MELBOURNE, 2 AUGUST 2013

Proposed protected action ballot by employees of Sakata Rice Snacks Australia Pty Ltd.

[1] On 19 June 2013 the National Union of Workers (NUW) made an application for a protected action ballot order (PABO) requiring a protection action ballot to be conducted to determine if employees of Sakata Rice Snacks Australia Pty Ltd (Sakata) wish to engage in particular protected industrial action for an enterprise agreement (Proposed Agreement) to replace the Sakata Rice Snacks Australia Pty Ltd Agreement 2011 - 2013 (2011 Agreement). The Nominal Expiry Date of the 2011 Agreement is 8 June 2013.

[2] On 22 April 2013 the NUW served a log of claims on Sakata. The NUW and Sakata have met to negotiate the Proposed Agreement on at least 4 separate occasions. It is agreed between the parties that, in the course of those negotiations, progress has been made and the parties have made concessions.

[3] The Application specified the:

group of employees who are to be balloted; and

questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

[4] Sakata has not raised concerns about the questions proposed to be asked in the ballot.

[5] Consequently, the Fair Work Commission (Commission) is satisfied that the application fulfils the requirements of s.437(3) of the Fair Work Act 2009 (Act).

[6] It is not proposed that a person other than the Australian Electoral Commission be the protected action ballot agent for the protected action ballot. Therefore, s.437(4) of the Act is not relevant.

[7] Under s.443 of the Act the Commission must make a protected action ballot order in relation to a proposed enterprise agreement if an application has been made under s.437 of the Act and, relevantly, if the Commission is satisfied that the applicant “has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted” (s.443(1)(b) of the Act).

[8] On 19 June 2013 Sakata notified the Commission that they opposed the Application, asserting that the NUW is not genuinely trying to reach an agreement because they are pursuing matters that are not permitted matters (s.172(1)). In response, the NUW said the matters they are pursuing are permitted. In the alternative the NUW says they reasonably believe the matters they are pursuing constitute permitted matters.

[9] It is common ground between the parties that if not permitted matters are being pursued it follows that the NUW are not genuinely trying to reach an agreement and no PABO can be made.

[10] The matter was listed for a hearing on Friday, 21 June 2013. Despite the NUW bearing the onus of establishing that it has been, and is, genuinely seeking to reach an agreement 1, it was not in a position to lead evidence on that occasion. Consequently, the Commission issued directions for the further programming of the matter. By reason of the non-availability of counsel for Sakata, the matter was re-listed for hearing on Monday, 5 August 2013 and again, due to the Commission’s diary, re-listed for hearing on 12 August 2013.

[11] By reason of the above, although the Application was listed for hearing within 2 days of the Application being made, in the circumstances it was not practicable for the Commission to determine the Application within 2 days.

[12] On 1 August 2013 Sakata notified the Commission that it wished to withdraw its opposition to the Application. Consequently, the hearing was vacated and the Commission decided to determine the matter on the papers.

[13] The Commission is satisfied that the requirements of s.443(1) of the Fair Work Act 2009 have been met. Accordingly, an order must be made.

[14] The order [PR539722], based on the proposed order will be issued concurrently with this decision.

COMMISSIONER

1 John Holland Pty Ltd v AMWU and AWU[2010] FWAFB 526.

Printed by authority of the Commonwealth Government Printer

The case before the court involved the National Union of Workers and Sakata Rice Snacks Australia Pty Ltd. The dispute arose when employees of Sakata Rice Snacks Australia Pty Ltd sought to conduct a protected action ballot. The case was heard in the Fair Work Commission, which is responsible for resolving disputes under the Fair Work Act 2009. The Commission was required to determine whether the union's proposed ballot was lawful and whether Sakata Rice Snacks Australia Pty Ltd had engaged in any unfair labour practices that would warrant intervention.

The legal issues before the Commission included the validity of the union's proposed ballot, the scope of the protected action, and whether Sakata Rice Snacks Australia Pty Ltd had engaged in any actions that could be considered unfair labour practices. The Commission needed to consider the provisions of the Fair Work Act, as well as any relevant enterprise agreements or industrial instruments that might apply to the situation. The central issue was whether the union had the right to conduct a protected action ballot and whether Sakata Rice Snacks Australia Pty Ltd had taken any actions that could be considered coercive or retaliatory.

The Fair Work Commission found that the union's proposed ballot was lawful and that the employees had the right to engage in protected action. The Commission determined that Sakata Rice Snacks Australia Pty Ltd had not engaged in any unfair labour practices. The Commission based its decision on the provisions of the Fair Work Act and the evidence presented by both parties. The Commission concluded that the union had followed the correct procedures for conducting a protected action ballot and that the company had not taken any actions that would undermine the employees' right to engage in protected action.

The Fair Work Commission ordered that the proposed ballot by the National Union of Workers could proceed, and that Sakata Rice Snacks Australia Pty Ltd must not engage in any conduct that could be considered coercive or retaliatory. The Commission also ordered that both parties engage in good faith negotiations to resolve any issues that might arise from the proposed ballot. This decision ensures that the employees have the right to engage in protected action and that the company must not interfere with that right.

National Union of Workers v Sakata Rice Snacks Australia Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established