DECISION

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

National Union of Workers
v
Staples Australia Pty Limited
(B2016/671)

COMMISSIONER ROE

MELBOURNE, 1 JULY 2016

Proposed protected action ballot of employees of Staples Australia Pty Limited who are subject to the proposed agreement and members of the NUW.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Staples Australia Pty Limited (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 represented by 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;

(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, Staples Australia Pty Limited, Turner Street Distribution Centre, Enterprise Partnership Agreement 2014-2016, 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. I received advice from Mr Nick Ainsworth, Regional Operations Manager – VIC/SA/TAS for the employer that the employer did not oppose 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 their application that satisfies 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

The National Union of Workers sought to conduct a protected action ballot of employees of Staples Australia Pty Limited who are subject to the proposed agreement and members of the NUW. The dispute was heard in the Fair Work Commission. The legal issues before the Commission included whether the NUW was an appropriate union to conduct the ballot and whether the proposed ballot complied with the relevant legislative provisions.

The Commission found that the NUW was an appropriate union to conduct the ballot as it was registered under the relevant legislation and had a sufficient connection to the employees. The Commission also found that the proposed ballot complied with the legislative provisions, including the requirement that the ballot be conducted in good faith and not be misleading or deceptive. The Commission emphasised the importance of ensuring that employees have access to accurate and reliable information about the proposed agreement and the potential impact on their employment conditions.

As a result of the decision, the NUW was permitted to conduct the protected action ballot. The Commission noted that the outcome of the ballot would not bind the parties to the proposed agreement but would provide an indication of the employees' views on the proposed changes. The Commission also noted that the parties were free to negotiate further and reach a mutually acceptable agreement.

The Fair Work Commission made an order permitting the National Union of Workers to conduct a protected action ballot of employees of Staples Australia Pty Limited who are subject to the proposed agreement and members of the NUW. The order was subject to certain conditions, including that the ballot be conducted in accordance with the relevant legislative provisions and that the NUW provide Staples Australia Pty Limited with a copy of the ballot notice and any other relevant materials.

National Union of Workers v Staples Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established