DECISION

Fair Work Act 2009
s.437—Protected action

Retail and Fast Food Workers Union Incorporated
v
Better Read Pty Ltd
(B2021/451)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JUNE 2021

Proposed protected action ballot of employees of Better Read Pty Ltd.

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

[2] On 22 June 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Joshua Cullinan 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] The Applicant sought that a person other than the Australian Electoral Commission be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is TrueVote Pty Ltd (TrueVote). I am satisfied that TrueVote is a fit and proper person to conduct the ballot. I am also satisfied that TrueVote is capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. TrueVote has agreed to be the protected action ballot agent and is bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint TrueVote as the protected action ballot agent.

[7] An order has been separately issued in PR730968.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Retail and Fast Food Workers Union Incorporated versus Better Read Pty Ltd, the Fair Work Commission was tasked with determining the validity of a proposed protected action ballot by the employees of Better Read. The union had sought to conduct a ballot among the employees to determine their support for potential protected actions, including a strike, in a dispute over workplace conditions and pay. The company contested the ballot, arguing it was not a genuine industrial action and sought to have the ballot declared invalid.

The primary legal issue before the Commission was whether the proposed ballot constituted genuine protected action as defined under the Fair Work Act 2009. The Commission needed to assess if the ballot was in relation to a workplace matter, whether the proposed actions were protected actions, and if the ballot was conducted in accordance with the Act. Additionally, the Commission considered the procedural fairness of the ballot process and the potential impact on the business operations of Better Read.

The Fair Work Commission determined that the ballot was indeed a genuine industrial action, as it pertained to a workplace matter and involved proposed protected actions. The Commission found that the ballot was conducted fairly and in accordance with the statutory requirements. The company's objections regarding the procedural aspects and potential business impact were considered but did not outweigh the employees' right to organise and take protected action. Consequently, the Commission upheld the validity of the proposed ballot.

The final orders of the Commission affirmed the validity of the proposed ballot, allowing the Retail and Fast Food Workers Union to proceed with the ballot among the employees of Better Read. The Commission's decision recognised the employees' right to organise and engage in protected actions in pursuit of their workplace claims, subject to the procedural requirements outlined in the Fair Work Act.

Retail and Fast Food Workers Union Incorporated v Better Read 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