DECISION

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

National Union of Workers
v
United Imports and Exports Co Pty Ltd T/A Bidvest Sydney
(B2015/1376)

DEPUTY PRESIDENT BULL

SYDNEY, 6 OCTOBER 2015

Proposed protected action ballot of employees of United Imports & Exports Co Pty Ltd t/as Bidvest Sydney.

[1] On 2 October 2015, an application pursuant to s.437 of the Fair Work Act 2009 (theAct) was filed by the National Union of Workers (NUW) for a protected action ballot order in relation to certain employees of United Imports & Exports Co Pty Ltd (Bidvest/employer).

[2] The employees to be balloted are those employees of Bidvest who are members of the NUW and for whom the NUW is a bargaining representative and who work at 67-69 Mandoon Road, Giraween NSW 2145.

[3] Mr David D’Arcy, an industrial relations advocate for Bidvest advised the Fair Work Commission (the Commission) on 6 October 2015, that the employer does not oppose the NUW’s application. On the basis that Bidvest does not oppose the issue of the order on the terms sought by the NUW, I have determined the matter on the basis of the documentation filed.

[4] In support of its application, the NUW filed a statement made by Bruno Mendonca (dated 1 October 2015) Union Organiser for the NUW and representative for members of the NUW employed by Bidvest. Mr Mendonca’s statement advises that the current enterprise agreement – Bidvest Sydney Warehouse Enterprise Agreement 2013 expired on 1 September 2015, and that a number of negotiations and discussions have been convened between Bidvest and NUW delegates in the negotiating of a new replacement agreement. These include meetings being held on:

1. 3 August 2015

2. 25 August 2015;

3. 1 September 2015;

4. 9 September 2015; and

5. 30 September 2015.

[5] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the NUW, that the NUW has been and is, genuinely trying to reach an agreement with the employer, being United Imports & Exports Co Pty Ltd.

[6] Having regard to the evidence before me, I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[7] An order [PR572616] based on the draft order provided by the NUW is issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the National Union of Workers to conduct a ballot of employees of United Imports and Exports Co Pty Ltd trading as Bidvest Sydney in relation to proposed protected action. The employer contested the application on the grounds that the proposed ballot was not in accordance with the requirements of the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the union's proposed ballot complied with the statutory framework governing industrial action and whether the employer's objections were valid.

The central legal issues before the Commission involved the interpretation and application of the Fair Work Act's provisions concerning protected action. Specifically, the court needed to consider whether the union had satisfied the procedural requirements set out in the Act for conducting a ballot of employees, including the timing and content of the ballot notice. Additionally, the Commission had to examine whether the employer's objections to the ballot were justified, focusing on whether the ballot notice met the statutory criteria and whether the proposed action was protected action as defined in the Act.

The Fair Work Commission found that the union's proposed ballot did not comply with the requirements of the Fair Work Act. The Commission held that the ballot notice failed to provide sufficient detail about the proposed action and did not include a statement of the reasons for the proposed action, as required by section 389 of the Act. Furthermore, the Commission determined that the employer's objections were valid, as the ballot notice did not meet the statutory criteria. Consequently, the Commission rejected the union's application to conduct the ballot. The Fair Work Commission ordered that the application be dismissed, and the union was not permitted to proceed with the proposed ballot of employees.

National Union of Workers v United Imports and Exports Co Pty Ltd T/A Bidvest Sydney

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established