National Union of Workers v Yakult Australia Pty Ltd

[2014] FWC 3713

[2014] FWC 3713

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
Yakult Australia Pty Ltd
(B2014/814)

DEPUTY PRESIDENT KOVACIC MELBOURNE, 4 JUNE 2014

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

[1] This is an application by the National Union of Workers (NUW) 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] On 29 May 2014 I was advised by Ms Katherine Woodman, the HR Co-ordinator for the Respondent, that it would be opposing the application and that the Board of Directors were currently overseas and would not return to the office until 2 June 2014. This matter was listed for a telephone mention and programming on 3 June 2014.

[3] The NUW, in its application, addressed the statutory grounds, stating that they had served a log of claims on the Respondent on or about 13 February 2013 and that the parties had met on no less than ten occasions in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[4] At the mention Mr David Whatley, a Director with the Respondent, opposed the ballot. In short, Mr Whatley submitted that the Respondent was surprised by the application given that it was awaiting a response from the NUW to an email from the Respondent on possible next steps given the apparent stalemate in the negotiations. Mr Whatley also disputed aspects of the material included in the NUW’s application. For instance, he believed that there had been fewer than the ten meetings between the Respondent and the NUW stated in the application.

[5] However, at no stage did the Respondent challenge that the NUW had been and was genuinely trying to reach agreement.

[6] Against that background, I advised the parties that I was satisfied that the requirements in s.443(1) of the Act have been met and that I would make an order. The order [PR551433] is based on the draft order provided by the NUW and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

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