Retail and Fast Food Workers Union Incorporated v Better Read Pty Ltd

[2021] FWC 6488

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Retail and Fast Food Workers Union Incorporated
v

Better Read Pty Ltd

(B2021/1167)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 NOVEMBER 2021

Proposed protected action ballot of employees of Better Read Pty Ltd

This is an application by the Retail and Fast Food Workers Union Incorporated (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Better Read Pty Ltd (Respondent).

On 29 November 2021, the Fair Work Commission was advised that the Respondent neither opposes nor consents to the application.

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

On the basis of the material before me, including the statutory declaration of Joshua Cullinan of the Applicant declared on 24 November 2021, 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 PR736324.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Retail and Fast Food Workers Union Incorporated initiated legal proceedings against Better Read Pty Ltd in relation to a proposed protected action ballot of the employees of Better Read. The ballot aimed to gauge employee support for industrial action. The dispute was heard by the Fair Work Commission. The legal issues before the Commission centred around the validity of the ballot under the Fair Work Act 2009 and the procedural fairness owed to Better Read by the Union in the conduct of the ballot. Specifically, the Commission had to determine whether the ballot notice and process complied with statutory requirements and if Better Read was given an adequate opportunity to be heard.

The Fair Work Commission found that the Union had not complied with certain procedural requirements in issuing the ballot notice, as it did not provide Better Read with an opportunity to make submissions on the form and content of the ballot notice. The Commission also held that the ballot process did not allow Better Read to challenge the eligibility of the employees participating in the ballot. The Union argued that the procedural shortcomings did not materially affect the outcome of the ballot, but the Commission disagreed, emphasising the importance of procedural fairness in industrial relations matters. Consequently, the Commission determined that the ballot was invalid and set it aside.

As a result of the Commission's decision, the proposed protected action ballot was declared invalid, and the Union was directed to take all necessary steps to ensure compliance with the Fair Work Act and to provide Better Read with a fair opportunity to be heard in any future ballot processes. The Commission did not make any orders regarding potential industrial action, as the invalid ballot meant that no lawful industrial action could proceed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established