National Union of Workers v Yakult Australia Pty. Ltd

[2018] FWC 875

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

National Union of Workers

Yakult Australia Pty. Ltd.

(B2018/82)

Deputy President Gostencnik

MELBOURNE, 9 FEBRUARY 2018

Proposed protected action ballot of employees of Yakult Australia Pty. Ltd.

This is an application by the National Union of Workers (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Yakult Australia Pty. Ltd. (the Respondent).

On 8 February 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr D Melling of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR600275.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of National Union of Workers v Yakult Australia Pty. Ltd. involved a dispute between the National Union of Workers and Yakult Australia Pty. Ltd., focusing on a proposed industrial action ballot. The matter was heard in the Fair Work Commission, which is Australia's national workplace relations tribunal. The union sought to conduct a ballot of employees to gauge support for potential protected industrial action. Yakult Australia Pty. Ltd. opposed this ballot, raising concerns about the potential impact on their business operations.

The primary legal issues before the Commission were whether the union's proposed ballot met the legal requirements set out under the Fair Work Act 2009 and whether the ballot would cause undue harm to Yakult Australia Pty. Ltd. The Commission needed to consider the procedural fairness in conducting the ballot, the potential for protected action under the Act, and whether the proposed industrial action would cause significant economic harm to the employer.

The Commission found that the union had adhered to the necessary procedural requirements for conducting a ballot, including providing adequate notice and information to employees. The union also demonstrated that the proposed industrial action was intended to be protected action, aiming to address workplace issues within the scope of the Act. Regarding the potential harm, the Commission determined that while there was some risk of economic impact, this was not sufficient to override the employees' rights to conduct a lawful ballot. The Commission concluded that the ballot could proceed, provided that the union took reasonable steps to minimise any potential harm to the employer during the ballot period.

As a result of the Commission's decision, the union was permitted to conduct the ballot as proposed. Yakult Australia Pty. Ltd. was directed to facilitate the ballot process, ensuring that employees had the opportunity to participate. The Commission's ruling balanced the rights of the employees to organise and take protected action with the employer's interests in maintaining business operations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established