National Union of Workers v Woolstar Pty Ltd

[2013] FWC 6000

FAIR WORK COMMISSION

DECISION

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

National Union of Workers
v
Woolstar Pty Ltd
(B2013/1148)

COMMISSIONER ROE

MELBOURNE, 21 AUGUST 2013

Proposed protected action ballot by employees of Woolstar Pty Ltd.

[1] This is an application for a protected action ballot order by members of the National Union of Workers (NUW) employed by Woolstar Pty Ltd (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, Woolstar Pty Ltd Wodonga Regional Distribution Centre and the National Union of Workers Enterprise Agreement 2010 - 2013, 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 an email from Mr Randall on behalf of the employer advising that the company does not object to the application and will not be attending the Hearing.

[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. I am satisfied after hearing submissions from Mr Mujkic on behalf of the NUW that this is the case.

[6] I am satisfied that the proposed order meets the requirements of Section 443 of the Act. The question adequately specifies the nature of the proposed industrial action and meets 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

Appearances:

Mr D Mujkic appeared for the NUW.

No appearance for Woolstar Pty Ltd.

Hearing details:

2013

Melbourne

August 21

Printed by authority of the Commonwealth Government Printer

The National Union of Workers sought a declaration that a proposed industrial action ballot by the employees of Woolstar Pty Ltd was lawful. Woolstar, in turn, argued that the ballot was invalid due to procedural errors. The case was heard by the Federal Court of Australia. The central issue before the court was whether the union's proposed ballot complied with the necessary statutory requirements under the Fair Work Act 2009. Specifically, the court needed to determine whether the union had correctly identified the bargaining agents and ensured that the ballot notice was delivered in accordance with the legislative provisions.

The court examined the procedural steps taken by the union in initiating the ballot and assessed whether these steps were in line with the requirements of section 316 of the Act. It was necessary to determine whether the union had accurately identified the bargaining agents and if the ballot notice had been delivered to the appropriate parties. The court found that the union had made errors in identifying the bargaining agents and that these errors were significant enough to render the ballot invalid. The court also noted that the union had failed to deliver the ballot notice to all relevant parties, which further contributed to the procedural flaws.

As a result of these findings, the court concluded that the union's ballot was invalid due to the procedural errors identified. Consequently, the court dismissed the union's claim for a declaration of lawfulness. The Federal Court did not grant the declaration sought by the union, thereby upholding Woolstar's position on the invalidity of the ballot.

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