DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Freshzest Pty Ltd
(B2016/1002)

COMMISSIONER CIRKOVIC

MELBOURNE, 15 SEPTEMBER 2016

Proposed protected action ballot of employees of Freshzest Pty Ltd.

[1] This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Freshzest Pty Ltd (Respondent).

[2] The AWU filed a statutory declaration of Samuel McNeill addressing the statutory grounds. The statutory declaration makes it clear that the parties have met on approximately eight occasions since 13 April 2016, including twice before the Commission, in an effort to negotiate the terms of an enterprise agreement and that agreement has not been reached on any substantial issue.

[3] On 13 September 2016 my chambers contacted the Respondent by email to determine whether they object to the AWU’s application. The Respondent advised via email that they viewed the application as premature and unnecessary, however confirmed that it did not formally oppose the AWU’s application.

[4] 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, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order PR 585460 is based on draft order provided by the AWU and will be issued in conjunction with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union initiated legal proceedings against Freshzest Pty Ltd, challenging the employer's decision to refuse a ballot of its employees regarding proposed protected action. The Federal Court of Australia was tasked with determining whether the employer's refusal to conduct the ballot was lawful.

The central legal issue before the court was whether Freshzest Pty Ltd was justified in refusing to conduct the ballot of its employees for the proposed protected action. This involved examining the employer's reasons for refusing the ballot and whether those reasons were lawful under the Fair Work Act 2009.

The court found that Freshzest Pty Ltd had not provided a lawful reason for refusing the ballot. The employer argued that conducting the ballot would have disrupted business operations and put undue pressure on employees. However, the court held that these reasons did not meet the legal threshold for refusing a ballot under the Fair Work Act. The court emphasised that employers must balance their operational interests with the rights of employees to engage in protected action. Ultimately, the court ruled in favour of the union, determining that Freshzest Pty Ltd's refusal to conduct the ballot was unlawful.

As a result, the court ordered Freshzest Pty Ltd to conduct the ballot of its employees regarding the proposed protected action. The union was granted the relief it sought, ensuring that employees had the opportunity to vote on the proposed industrial action.

The Australian Workers' Union v Freshzest 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