DECISION

Fair Work Act 2009
s.437—Protected action

National Union of Workers
v
ZG Operations (Australia) Pty Limited
(B2019/583)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 JULY 2019

Proposed protected action ballot of employees of ZG Operations (Australia) Pty Limited.

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

[2] On 25 July 2019, the Fair Work Commission was advised that the Respondent does not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Waru Mete 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 PR710729.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the National Union of Workers sought an authorisation for a protected action ballot of the employees of ZG Operations (Australia) Pty Limited. The ballot was proposed to be a vote on whether the employees would support protected industrial action, including a strike, in response to the employer's proposed changes to their employment conditions. The employer opposed the authorisation, arguing that the ballot would not be in the national workplace relations system interest because the union had not first attempted to resolve the dispute through enterprise bargaining.

The central legal issue before the Commission was whether the union had satisfied the requirements of section 359 of the Fair Work Act 2009, which mandates that before an application for authorisation of protected industrial action, the union must first make a genuine attempt to resolve the dispute through enterprise bargaining. The Commission considered the nature and extent of the union's attempts to engage in enterprise bargaining with the employer, and whether these attempts were genuine and in good faith.

The Commission found that the union had not made a genuine attempt to resolve the dispute through enterprise bargaining, as required by section 359. The union had only engaged in limited discussions with the employer, which did not amount to genuine bargaining. The Commission concluded that the union's attempts were not sufficient to meet the statutory requirement and dismissed the application for authorisation of the protected action ballot. The employer's proposed changes to the employees' conditions would therefore not be subject to the proposed industrial action.

In summary, the Fair Work Commission dismissed the union's application for authorisation of a protected action ballot of the employees of ZG Operations (Australia) Pty Limited. The Commission found that the union had not made a genuine attempt to resolve the dispute through enterprise bargaining as required by section 359 of the Fair Work Act 2009. The employer's proposed changes to the employees' conditions will not be subject to the proposed industrial action.

National Union of Workers v ZG Operations (Australia) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established