DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Saputo Dairy Australia Pty Ltd
(B2019/420)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2019

Proposed protected action ballot of employees of Saputo Dairy Australia Pty Ltd.

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

[2] On 27 May 2019, 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 Jillian Batt of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, 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 PR708726.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers brought proceedings against Saputo Dairy Australia Pty Ltd in the Fair Work Commission, seeking an order that the employer must facilitate a ballot of its employees to determine whether they support protected action. The dispute arose from ongoing industrial action by the employees, who were represented by the union, and the employer's refusal to comply with a request to facilitate the ballot. The Commission was tasked with determining whether the employer was legally obligated to assist in the ballot process and whether the employer's refusal was justified.

The central legal issue before the Commission was whether the employer had a duty to facilitate the union's ballot and, if so, whether this duty could be overridden by the employer's concerns about potential disruptions to its operations. The Commission considered relevant provisions of the Fair Work Act 2009 and previous case law to assess the obligations of employers during industrial disputes. It also examined the potential impact of the ballot on the employer's business operations and the employees' right to organise and engage in protected actions.

In its decision, the Commission found that the employer had a legal obligation to facilitate the union's ballot, as mandated by the Fair Work Act. The Commission held that the employer's refusal to assist in the ballot process was unjustified, particularly given the relatively minimal disruption that such a ballot would cause. The Commission emphasised the importance of upholding the employees' rights to organise and engage in protected actions, and it noted that any operational disruptions could be managed through appropriate measures. The Commission ordered the employer to facilitate the ballot and directed both parties to engage in further discussions to address any operational concerns.

The final orders included a directive for the employer to facilitate the union's ballot within the specified timeframe and a requirement for both parties to continue negotiations aimed at resolving any operational issues arising from the ballot process. The Commission also noted that failure to comply with the orders could result in further legal consequences.

National Union of Workers v Saputo Dairy 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