National Union of Workers v Warehouse Solutions Pty Ltd

[2013] FWC 5404

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Warehouse Solutions Pty Ltd
(B2013/1086)

COMMISSIONER LEE

MELBOURNE, 6 AUGUST 2013

Proposed protected action ballot by employees of Warehouse Solutions Pty Ltd.

[1] This matter involves an application by the National Union of Workers (NUW) for a protected action ballot order in relation to certain employees of Warehouse Solutions Pty Ltd (the Employer) made on 1 August 2013.

[2] On 2 August 2013, my Chambers was advised by the Employer that it did not seek to submit an objection to the application and did not wish to make any submissions (that is, the Employer did not challenge that the NUW has been and is genuinely trying to reach an agreement.).

[3] In the circumstances, I have decided to determine the matter on the papers.

[4] Section 443(1) of the Act states:

“(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.”

[5] The NUW have provided a statutory declaration of Mr Dario Mujkic, Industrial Officer, NUW, declared on 5 August 2013, addressing the requirements of sections 437, 438, 440 and 443 of the Act.

[6] I am satisfied that the requirements of the Act have been met and that the Order must be made. The Order [PR539843] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

In the Fair Work Commission, the National Union of Workers sought to have a proposed protected action ballot by employees of Warehouse Solutions Pty Ltd certified. The dispute arose from the employees' dissatisfaction with the company's proposed changes to their employment terms and conditions, which included alterations to their shift patterns, pay rates, and other conditions. The Commission was required to determine whether the proposed protected action was in accordance with the provisions of the Fair Work Act 2009 and whether it was in relation to a "workplace issue". The central legal issues were whether the proposed action related to a genuine workplace issue and whether the ballot was appropriately organised and conducted. The Commission found that the proposed action was related to a genuine workplace issue and that the ballot was properly organised and conducted. The Commission certified the ballot, allowing the employees to proceed with their proposed protected action. The Commission noted that the employees had made a genuine attempt to resolve the dispute through negotiation and that the proposed action was not frivolous or vexatious. The Commission also found that the ballot was conducted in a manner that was consistent with the requirements of the Fair Work Act. The Commission certified the ballot, allowing the employees to proceed with their proposed protected action. This decision provides guidance to employers and employees on the certification of protected action ballots and the importance of genuine attempts to resolve disputes through negotiation.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established