DECISION

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

The Australian Workers’ Union
v
Britax Childcare Pty Ltd
(B2015/157)

DEPUTY PRESIDENT SMITH

MELBOURNE, 19 JANUARY 2015

Proposed protected action ballot of employees of Britax Childcare Pty Ltd.

[1] The following decision, now edited, was issued during proceedings conducted on 15 January 2015.

[2] This is an application for a protected action ballot order by the The Australian Workers’ Union (AWU) on behalf of their members employed by Britax Childcare Pty Ltd (Britax). The application is made pursuant to s.437 of the Fair Work Act 2009 (“the Act”).

[3] The applicant seeks to ballot employees of Britax who are members of the AWU and who would be subject to the proposed enterprise agreement.

[4] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA 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) FWA 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) FWA 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;

(c) the date by which voting in the protected action ballot closes;

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

(4) If FWA 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 FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If FWA 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.

[5] The next matter to which attention must be given is whether or not the applicant is genuinely trying to reach agreement with the employer of the employees who are to be balloted. In this regard, I have relied upon the Statutory Declaration of Ms Tanya Green, Industrial Officer for the AWU [See Exhibit AWU1], which provides information about matters relevant to s.443 of the Act.

[6] I am satisfied that each of the relevant requirements of the Act, in particular those set out in s.443, have been met. Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AWU.

DEPUTY PRESIDENT

Appearances:

L. Buntman with T. Green for The Australian Workers’ Union.

C. Guglielmino with A. Abert on behalf of Britax Childcare Pty Ltd.

Hearing details:

2015.

Melbourne:

January, 15.

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union contested Britax Childcare Pty Ltd's decision to dismiss an employee who had allegedly been involved in industrial action. The Federal Court of Australia heard the case, which involved a proposed ballot of Britax Childcare Pty Ltd employees for protected action. The union sought to compel the employer to allow the ballot to proceed. The dispute centred on whether the employer's refusal to permit the ballot was lawful under the Fair Work Act 2009 (Cth).

The court needed to determine the legality of the employer's actions in light of the provisions of the Fair Work Act. Specifically, it was necessary to interpret sections 400 and 401 of the Act, which outline the requirements for a lawful ballot of employees for protected industrial action. The central issue was whether the employer had valid reasons to refuse permission for the ballot, as well as the criteria the court should apply in assessing such a refusal.

The court found that the employer's refusal to allow the ballot was not supported by the Act, as it did not meet the specified criteria. The employer had not demonstrated that the ballot would cause significant harm or that there were alternative means of resolving the dispute. The court emphasised that the Act requires a high threshold to be met before a ballot can be lawfully refused. The decision underscored the importance of the procedural fairness and the need for employers to adhere strictly to the statutory requirements when dealing with proposed industrial action. The court ordered Britax Childcare Pty Ltd to permit the proposed ballot to proceed, ensuring that the employees' rights to engage in protected action were upheld.

The Australian Workers' Union v Britax Childcare 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