National Union of Workers v The Reject Shop Ltd

[2014] FWC 5497

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
The Reject Shop Ltd
(B2014/1228)

COMMISSIONER ROE

MELBOURNE, 12 AUGUST 2014

Proposed protected action ballot of employees of The Reject Shop.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by The Reject Shop (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, The Reject Shop/NUW Enterprise Agreement 2011 - 2014, 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

In the recent decision of National Union of Workers v The Reject Shop Ltd, the Fair Work Commission (FWC) was asked to determine the legality of a proposed protected action ballot organised by the National Union of Workers (NUW). The ballot was intended to involve employees of The Reject Shop Ltd, and the retailer contested the ballot on the basis that it did not comply with the procedural requirements set out in the Fair Work Act 2009 (Cth).

The central legal issue before the FWC was whether the NUW had followed the correct procedures when seeking to conduct the ballot. Specifically, the dispute centred on whether the union had adequately notified The Reject Shop of the ballot, as required under section 398 of the Act. The Reject Shop argued that the union had failed to provide the requisite notice, while the NUW maintained that it had complied with all necessary procedural requirements.

In its decision, the FWC found that the NUW had indeed complied with the statutory notice requirements. The Commission concluded that the union had provided sufficient information to The Reject Shop, allowing it to participate in the ballot process. The FWC emphasised the importance of procedural compliance in such matters, but ultimately determined that the union's actions were in line with the statutory provisions. As a result, the proposed ballot was deemed lawful, and the FWC dismissed The Reject Shop's application.

The FWC's decision in this matter highlights the importance of strict adherence to procedural requirements when conducting protected action ballots. Employers and unions alike must ensure that they are fully aware of and comply with the relevant statutory provisions to avoid potential legal challenges.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established