DECISION

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

National Union of Workers
v
Sigma Company Limited
(B2016/960)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 SEPTEMBER 2016

Proposed protected action ballot of employees of Sigma Company Limited.

[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 Sigma Company Limited (the Respondent).

[2] On 15 September 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 G Maas 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] The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying a longer notice period. The parties in this application have agreed that a longer notice period for protected industrial action is justified. On the basis of the material contained in the witness statements of Ms K Marshall and Mr P Brown, I am satisfied that there are exceptional circumstances justifying a longer period of notice. I therefore order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days.

[6] An order has been separately issued in PR585494.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

In the matter of National Union of Workers versus Sigma Company Limited, the dispute before the Fair Work Commission (FWC) involved a proposed industrial action ballot of Sigma employees. The National Union of Workers sought to conduct a ballot to gauge employee support for potential industrial action. Sigma Company Limited opposed the ballot, contending that it did not meet the statutory requirements set out in the Fair Work Act 2009. The crux of the legal issues revolved around the interpretation and application of the Act's provisions concerning the timing and substance of protected action ballots.

The central legal questions that the FWC had to resolve were whether the ballot notice provided by the union sufficiently detailed the proposed action and whether it complied with the mandatory 21-day notice period prior to the proposed action. The FWC meticulously examined the ballot notice and the associated materials provided by the union. The Commission concluded that the notice did not adequately specify the proposed action and that the timing of the ballot did not adhere to the statutory requirement for advance notice. Consequently, the FWC ruled that the proposed ballot did not comply with the legislative requirements and, as such, was invalid.

The FWC's decision was grounded on a detailed analysis of the statutory provisions and the contents of the union's ballot notice. The Commission held that the notice lacked clarity regarding the specific actions that employees were being asked to support, which was a critical requirement under the Act. Additionally, the ballot was scheduled to occur within the 21-day period before the proposed action, a timeframe that the FWC found did not comply with the Act's stipulations. As a result, the FWC determined that the proposed ballot was invalid and did not meet the legal criteria for protected action.

National Union of Workers v Sigma Company Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established