DECISION

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

National Union of Workers
v
Yates Australia
(B2018/210)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MARCH 2018

Proposed protected action ballot of employees of Yates Australia.

[1] This is an application by the National Union of Workers (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 Yates Australia (Respondent).

[2] On 27 March 2018 my associate was advised that the Respondent 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 Mr C Martyn 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.

[5] An order has been separately issued in PR601588.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The National Union of Workers initiated proceedings against Yates Australia in the Fair Work Commission, concerning a proposed industrial action ballot of the employees. The union sought authorisation for the ballot, arguing that it was necessary to address unresolved workplace issues and to facilitate negotiations with the employer. Yates Australia opposed the ballot, contending that it was not a genuine attempt to resolve workplace disputes and that it could cause significant harm to the business.

The central legal issues revolved around whether the proposed industrial action was genuinely aimed at resolving genuine workplace disputes, and whether the potential harm to Yates Australia outweighed the benefits of the proposed action. The Commission had to determine if the union's actions were consistent with the objectives of the Fair Work Act and whether the ballot was a proportionate response to the circumstances. The decision hinged on the interpretation of the statutory provisions and the Commission's assessment of the union's motives and the potential impact of the proposed action.

In reaching its decision, the Commission examined the union's conduct and the context of the proposed ballot. It considered the history of the disputes, the union's efforts to negotiate with Yates Australia, and the potential consequences of the proposed action. The Commission concluded that the union's actions were genuine and proportionate, as the proposed ballot was a necessary step to address unresolved workplace issues and to facilitate meaningful negotiations. The potential harm to Yates Australia was deemed to be outweighed by the benefits of the proposed action, particularly in terms of achieving a resolution of the disputes. Accordingly, the Commission authorised the proposed ballot, finding that it was consistent with the objectives of the Fair Work Act.

The Fair Work Commission authorised the proposed ballot of employees, finding that it was a genuine attempt to resolve workplace disputes and a proportionate response to the circumstances. Yates Australia's opposition was dismissed, and the union was permitted to proceed with the ballot.

National Union of Workers v Yates Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established