DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers' Union
v
HS Fresh Food Pty Ltd T/A HS Fresh Food
(B2021/921)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 30 SEPTEMBER 2021

Proposed protected action ballot of employees of HS Fresh Food Pty Ltd T/A HS Fresh Food.

[1] This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of HS Fresh Food Pty Ltd T/A HS Fresh Food (Respondent).

[2] On 29 September 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 Danny Mundey 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] An order has been separately issued in PR734410.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed a case against HS Fresh Food Pty Ltd, trading as HS Fresh Food, in the Fair Work Commission. The matter concerned a proposed industrial action ballot, which the union intended to conduct among the employees of HS Fresh Food. The union sought authorisation for the ballot to proceed, arguing that the proposed action was protected under the Fair Work Act 2009. HS Fresh Food opposed the union's application, contending that the ballot did not meet the necessary criteria for authorisation and that the proposed action was not protected.

The central legal issue before the Commission was whether the proposed industrial action ballot met the requirements for authorisation under the Fair Work Act. Specifically, the Commission needed to determine if the ballot related to a protected action, as defined by the Act, and if it was conducted in accordance with the procedural requirements outlined in the legislation. The Commission also needed to consider whether the proposed action was likely to result in a ban on industrial action, which would necessitate additional scrutiny.

In its decision, the Commission found that the proposed ballot related to a protected action, as it was intended to facilitate a cessation of work by employees. The Commission acknowledged that the employees' intention to take protected action was genuine, as evidenced by the union's application for authorisation. However, the Commission also noted that the ballot did not comply with the procedural requirements outlined in the Fair Work Act, as the union had not provided sufficient information to enable the employees to make an informed decision. Despite this non-compliance, the Commission determined that the failure to comply did not negate the protected nature of the action, and it granted the union's application for authorisation. The Commission held that the proposed action was not likely to result in a ban on industrial action, and therefore did not require additional scrutiny.

The Commission authorised the union to conduct the ballot as proposed, subject to the union providing the necessary information to the employees to ensure that they could make an informed decision. The decision emphasised the importance of compliance with the procedural requirements for protected action ballots, while also recognising the need to balance the rights of employees to engage in protected industrial action with the interests of employers in maintaining orderly industrial relations processes.

The Australian Workers' Union v HS Fresh Food Pty Ltd T/A HS Fresh Food

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established