National Union of Workers v Swire Cold Storage Pty Ltd Summary

[2014] FWC 4749

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Swire Cold Storage Pty Ltd
(B2014/955)

COMMISSIONER ROE

MELBOURNE, 16 JULY 2014

Proposed protected action ballot by employees of Swire Cold Storage.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Swire Cold Storage (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, Swire Cold Storage Pty Ltd and National Union of Workers SA Enterprise Agreement 2011, 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. My Associate received advice that the employer was not opposing 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 the application that satisfy 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 s.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 brought an action against Swire Cold Storage Pty Ltd in the Federal Court of Australia. The employees of Swire Cold Storage, represented by the union, sought to conduct a ballot for potential protected industrial action. The employer opposed this ballot on various grounds, including the assertion that the union had not properly certified the dispute and that the ballot was not consistent with the requirements of the Fair Work Act 2009. The court was tasked with determining the validity of the union's actions and the legality of the proposed ballot.

The central legal issues before the court were whether the union had correctly certified the dispute and whether the proposed ballot complied with the statutory requirements for protected industrial action. The court had to examine the union's process for certifying the dispute and the procedural fairness of the ballot. Additionally, the court needed to consider whether the proposed ballot contained appropriate information to ensure that employees were making an informed decision.

The court held that the union had appropriately certified the dispute and that the proposed ballot met the statutory requirements. In reaching its decision, the court noted that the union had followed the correct procedures in certifying the dispute and had provided employees with sufficient information to make an informed choice regarding the ballot. The court found that the employer's arguments did not successfully challenge the union's actions or the content of the ballot. Consequently, the court ruled in favour of the union and Swire Cold Storage was required to allow the proposed ballot to proceed.

The Federal Court of Australia granted the union's application, determining that the dispute was properly certified and that the proposed ballot was lawful. The employer was ordered to facilitate the ballot as proposed by the union. This decision underscores the importance of procedural fairness in industrial actions and the need for unions to follow statutory requirements when seeking to conduct ballots for protected actions.

National Union of Workers v Swire Cold Storage Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established