DECISION

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

National Union of Workers
v
Sigma Company Limited
(B2016/961)

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 Moase 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 PR585499.

DEPUTY PRESIDENT

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CaseChat Overview and Summary

The National Union of Workers brought proceedings against Sigma Company Limited in the Fair Work Commission, seeking to hold a protected action ballot of Sigma employees to determine whether they would support industrial action. Sigma opposed the ballot, arguing that it was not protected action as it related to a dispute about pay rates and conditions, which the union had already submitted to the Fair Work Commission for determination.

The central legal issue for the Commission to decide was whether the proposed ballot constituted protected action under the Fair Work Act 2009. Specifically, the Commission had to consider whether the proposed action was a response to an industrial dispute and whether it was protected action as defined by the Act. The Commission examined the nature of the dispute, the steps taken by the union to resolve it, and the proposed action's compatibility with the statutory framework governing industrial action.

The Fair Work Commission held that the proposed ballot did constitute protected action. It found that the dispute related to pay rates and conditions, which qualified as an industrial dispute under the Act. The Commission determined that the proposed ballot was a legitimate response to this dispute and was protected action, as it fell within the scope of allowable industrial action. The Commission rejected Sigma's argument that the ballot was not protected because the union had already submitted the dispute to the Fair Work Commission for determination. It held that the Act allows for multiple forms of action to be taken in response to an industrial dispute, including a ballot to gauge employee support for potential industrial action.

The Fair Work Commission ordered Sigma Company Limited to facilitate the proposed protected action ballot of its employees, allowing the union to proceed with the ballot as planned.

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