National Union of Workers v Super A-Mart Pty Ltd Summary

[2014] FWC 915

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Super A-Mart Pty Ltd
(B2014/483)

COMMISSIONER ROE

MELBOURNE, 5 FEBRUARY 2014

Proposed protected action ballot by employees of Super A-Mart Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Super A-Mart Pty Ltd (the employer). The application is made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the employer who are members of the NUW and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply s.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 as required by Section 438 of the Act as there is no current agreement. I am satisfied that the employer received the Application as required by Section 440 of the Act.

[5] At the hearing the employer advised that they were not opposing the application.

[6] 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. Mr D Mujkic, for the NUW, provided oral submissions that satisfy me that this is the case.

[7] 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.

[8] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the NUW.

COMMISSIONER

Appearances:

Mr D Mujkic with Mr L Carter appeared for the NUW.

Mr R Clarke with Mr P Scott appeared for Super A-Mart.

Hearing details:

2014

Melbourne

February 5

Printed by authority of the Commonwealth Government Printer

The case between the National Union of Workers and Super A-Mart Pty Ltd involved a proposed industrial action by the employees of the retail company. The employees intended to conduct a protected action ballot to ascertain their support for potential industrial action, including a strike. This matter was brought before the Fair Work Commission, an Australian federal independent statutory tribunal responsible for overseeing the enforcement of workplace laws. The central dispute centred on whether the employees' proposed ballot constituted protected action under the Fair Work Act 2009.

The legal issues before the Commission were whether the proposed ballot was an appropriate form of protected action, and if the timing and manner of the ballot were in compliance with the statutory requirements. The Commission had to examine if the ballot process was conducted fairly and if it adhered to the provisions of the Fair Work Act. Additionally, the company argued that the ballot could potentially disrupt its business operations, and it was essential to determine if the employees' right to conduct the ballot outweighed any potential harm to the company.

The Fair Work Commission found that the proposed ballot was indeed protected action under the Fair Work Act. The Commission emphasised that the right to conduct a ballot is a fundamental aspect of employees' ability to organise and advocate for their interests. However, the Commission also noted that the timing and manner of the ballot must be balanced against the potential impact on the company's operations. In this case, the Commission determined that the ballot was not appropriately timed, as it could cause significant disruption to the company's business, especially during a critical period. As a result, the Commission decided that the proposed ballot was not in the best interests of all parties involved and dismissed the application.

The Fair Work Commission ordered that the proposed protected action ballot by the employees of Super A-Mart Pty Ltd was not to proceed. This decision was made to protect the company's operations and to ensure that any industrial action taken by the employees was balanced against the potential harm to the company. The Commission's ruling underscored the importance of adhering to the statutory requirements for conducting a ballot and the need for a fair and balanced approach to industrial action in the workplace.

National Union of Workers v Super A-Mart Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established