DECISION

Fair Work Act 2009
s.437—Protected action

The Australasian Meat Industry Employees Union
v
JBS Australia Pty Ltd
(B2015/600)

COMMISSIONER LEE

MELBOURNE, 18 JUNE 2015

Application for a protected action ballot of employees of JBS Australia Pty Ltd.

[1] This matter involves an application by The Australasian Meat Industry Employees Union (the Applicant) for a protected action ballot order in relation to certain employees of JBS Australia Pty Ltd (the Respondent), made on 15 June 2015.

[2] Section 443(1) of the Fair Work Act 2009 (the Act) states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 16 June 2015, my Chambers was advised by the Respondent that it had no objections to the application and did not seek to be heard.

[4] At my direction, the Applicant lodged a statutory declaration of Mr Troy Baker, Union Official, The Australasian Meat Industry Employees Union, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR568496] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In this matter, the Australasian Meat Industry Employees Union sought to conduct a protected action ballot among the employees of JBS Australia Pty Ltd, a significant meat processing company. The union aimed to ascertain employee support for potential industrial action, including strikes or bans on overtime work. The dispute was lodged in the Fair Work Commission, the primary federal workplace relations tribunal in Australia.

The central legal issues before the Commission were whether the proposed industrial action was protected action within the meaning of the Fair Work Act 2009, and whether the union had complied with the requisite procedural steps to hold a lawful ballot. Specifically, the Commission needed to determine if the union had sufficiently notified JBS Australia of its intention to conduct the ballot and if the ballot's timing and manner were reasonable and appropriate.

The Commission held that the proposed industrial action was indeed protected action, as it related to a workplace dispute and was not an action taken in contravention of an enterprise agreement or other relevant industrial instrument. The union had provided adequate notice to JBS Australia and had followed the proper procedures in organising the ballot. The Commission further found that the timing and manner of the ballot were reasonable, taking into account the need to protect both the union members' rights and the employer's legitimate business interests. Therefore, the Commission authorised the union to proceed with the ballot, subject to compliance with specific conditions designed to ensure fairness and transparency.

As a result of the Commission's decision, the union was granted permission to conduct the protected action ballot among JBS Australia Pty Ltd's employees. The union was required to adhere to the conditions set by the Commission, including providing JBS Australia with a detailed ballot paper and instructions for the ballot process. The employer, JBS Australia, was also required to facilitate the ballot by providing necessary information and access to employees to enable them to participate in the voting process.

The Australasian Meat Industry Employees Union v JBS Australia 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