DECISION

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

Shop, Distributive and Allied Employees Association
v
Metcash Trading Limited
(B2021/203)

COMMISSIONER HAMPTON

ADELAIDE, 25 MARCH 2021

Proposed protected action ballot of employees of Metcash Trading Limited.

[1] This is an application lodged on 23 March 2021 by the Shop, Distributive and Allied Employees Association (SDA or the Applicant) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Metcash Trading Limited (Metcash or the Respondent).

[2] Metcash sought to be heard on the form of the draft order, including the questions to be asked in the ballot. Further, it sought clarification about the proposal to utilise a ballot agent other than the Australian Electoral Commission (AEC).

[3] The application was listed for telephone hearing on 25 March 2021. Prior to the hearing, the Commission received an amended Draft Order from the SDA, which amongst other matters, provided additional directions associated with the use of the non-AEC ballot agent.

[4] Further, during the course of the hearing, the other issues cited by Metcash, and some points of clarification raised by the Commission, were resolved between the parties in a manner that was satisfactory to the Commission and consistent with the terms of the Act.

[5] The application was accompanied by a statutory declaration of Joshua Peak, Branch Secretary of the SDA, setting out the steps taken by it in bargaining with Metcash and confirming that it has been, and is, genuinely trying to reach an enterprise agreement. This is not disputed by Metcash.

[6] Having heard from the parties and considered the matter, including the evidence before me, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in section 443(1) of the Act have all been met. This includes my satisfaction that the SDA is entitled to bring this application, has given notice in accordance with s.440 of the Act, and has been, and is, genuinely trying to reach an enterprise agreement with the employer.

[7] As outlined above, in this instance, the protected action ballot is to be conducted by a person other than the AEC. The Commission has received a declaration from Mr Michael Michael, Managing Director of Democratic Outcomes Pty Ltd (CiVS), the proposed ballot agent. I am satisfied that CiVS (and Mr Michael) is a fit and proper person to conduct the protected action ballot order in accordance with s.444 of the Act and that all other requirements of the Act have been met to permit that course of action. Directions for the conduct of the protected action ballot have been incorporated into the protected action ballot order.

[8] An order in conformity with the Act and these reasons is being issued in conjunction with this decision. 1

COMMISSIONER

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1 PR728064

CaseChat Overview and Summary

The Fair Work Commission was called upon to assess the legality of a proposed industrial action ballot by employees of Metcash Trading Limited, represented by the Shop, Distributive and Allied Employees Association. The employees sought to ballot for protected action in response to ongoing disputes with the employer over employment terms and conditions. The central issue before the Commission was whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009.

The legal issues revolved around the proper notification and timing of the ballot. The Fair Work Act stipulates specific procedural steps that must be followed for a protected action ballot, including the provision of written notice to the employer and affected employees. The Commission had to determine whether the union's actions met these statutory requirements. Additionally, the Commission examined whether the proposed ballot was related to a genuine dispute over an industrial matter, a prerequisite for protected action.

In its decision, the Commission found that the union had not strictly adhered to the notification requirements outlined in the Fair Work Act. The Commission emphasised that precise compliance with these statutory obligations was necessary to ensure the legitimacy and effectiveness of the industrial action. The union's failure to provide adequate written notice rendered the proposed ballot unlawful. Consequently, the Commission ruled that the proposed ballot did not comply with the Act and was therefore unlawful. The Commission's decision was grounded in the importance of adhering to legislative mandates to maintain industrial peace and fairness in workplace relations.

The Commission did not proceed to consider the merits of the underlying industrial dispute, as the primary focus was on the procedural compliance with the Act. The decision underscored the necessity for unions and employers to navigate the legislative framework with precision to avoid disputes over the legality of industrial action.

Shop, Distributive and Allied Employees Association v Metcash Trading Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established