DECISION

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

National Union of Workers
v
Swire Cold Storage Pty Ltd
(B2017/874)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 27 SEPTEMBER 2017

Proposed protected action ballot of employees of Swire Cold Storage Pty Ltd.

[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 Swire Cold Storage Pty Ltd (the Respondent).

[2] On 26 September 2017, the Respondent advised my associate that it did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] I have considered the application and the statutory declaration of Ms Claire Lewis, an Organiser of the Applicant, setting out the steps taken by the Applicant to try to reach agreement with the Respondent.

[5] I am satisfied that there is a notification time in relation to the proposed agreement, that the Applicant has been, and is genuinely trying to reach agreement with the Respondent, and that the other requirements for the making of a protected action ballot order have been met.

[6] Accordingly, the Commission is required under s.443 of the Act to make a protected action ballot order.

[7] An order has been separately issued in PR596398.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers sought a protected action ballot of employees of Swire Cold Storage Pty Ltd. The matter was heard by the Fair Work Commission, which had jurisdiction under the Fair Work Act 2009 (Cth). The dispute centred on the union's application for authorisation to conduct a ballot of the employees to ascertain their support for protected industrial action. Swire Cold Storage Pty Ltd opposed the application, arguing that the ballot would breach specific terms of the enterprise agreement and could cause significant operational disruption.

The central legal issue before the Commission was whether the union's proposed ballot met the statutory requirements under the Fair Work Act and whether it was necessary and appropriate to authorise the ballot. The Commission considered the criteria for authorising a ballot, including whether the proposed action was related to a workplace dispute, whether the employees were engaged in a protected industrial action, and whether the ballot was conducted in good faith. Furthermore, the Commission examined the potential impact of the ballot on the employer's business operations and the balance of rights between the union and the employer.

The Fair Work Commission determined that the union's application satisfied the necessary criteria for a ballot. The Commission found that the proposed action was related to a genuine workplace dispute and that the employees were engaged in protected industrial action. The Commission also considered the potential operational impact on Swire Cold Storage Pty Ltd but concluded that the benefits of allowing the ballot outweighed the potential harm. The Commission authorised the ballot, emphasising the importance of the right to conduct protected action and the need for a fair process to ascertain employee support.

The Fair Work Commission's decision authorised the National Union of Workers to conduct a protected action ballot of Swire Cold Storage Pty Ltd employees, subject to the terms and conditions set by the Commission. This decision reinforced the balance of rights between employers and employees in industrial relations matters and underscored the importance of following the statutory process for protected industrial action.

National Union of Workers v Swire Cold Storage 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