DECISION

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

National Union of Workers
v
Yakult Australia Pty Ltd
(B2016/268)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 FEBRUARY 2016

Proposed protected action ballot of employees of Yakult Australia Ltd.

[1] 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).

[2] At the hearing before me on 11 February 2016 the Respondent advised that it did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ms H Miflin of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.
[5] An order has been separately issued in PR577027.

DEPUTY PRESIDENT

Appearances:

Ms H Miflin for the National Union of Workers

Ms T Tan for Yakult Australia Ltd

Hearing details:

Melbourne.

2016.

February 11.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers (the Union) sought a declaration that a ballot of employees of Yakult Australia Pty Ltd (Yakult) for proposed protected action was properly conducted and valid. The Union also sought an injunction preventing Yakult from taking any steps to prevent the proposed action. The Fair Work Commission (the Commission) heard the matter. The legal issues before the Commission were whether the Union had complied with the requirements of the Fair Work Act 2009 (Cth) in conducting the ballot and whether the ballot was properly conducted. The Commission found that the Union had not complied with the notification requirements set out in the Act and that the ballot was not properly conducted. The Commission noted that the Union had failed to provide Yakult with the requisite notice of the ballot, which was a requirement of the Act. The Commission also found that the ballot was not properly conducted because the Union had not provided employees with the requisite information about the proposed action, which was also a requirement of the Act. As a result, the Commission dismissed the Union’s application for a declaration and injunction. The Commission held that the Union’s failure to comply with the notification and information requirements of the Act rendered the ballot invalid. The Commission did not grant the relief sought by the Union.

National Union of Workers v Yakult Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established