The Australian Workers' Union v Lion Dairy and Drinks

[2014] FWC 7799

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Lion Dairy and Drinks
(B2014/1533)

COMMISSIONER LEE

MELBOURNE, 31 OCTOBER 2014

Application for a protected action ballot of employees of Lion Dairy and Drinks.

[1] This matter involves an application by The Australian Workers’ Union (the Applicant) for a protected action ballot order in relation to certain employees of Lion Dairy and Drinks (the Respondent), made on 29 October 2014.

[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 31 October 2014, my Chambers was advised by the Respondent that it had no objections to the application in this matter.

[4] On the basis that the Respondent had advised that it had no objections, I have determined to deal with the matter on the papers filed.

[5] The Applicant lodged subsequent to the application a statutory declaration of Mr Kevin Midson, Organiser, The Australian Workers’ Union, addressing the requirements of the Act.

[6] 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.

[7] 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 [PR557329] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union sought to conduct a ballot of employees of Lion Dairy and Drinks to determine whether they would support protected industrial action. The matter was heard in the Federal Circuit Court of Australia. The Union argued that the proposed industrial action was protected and that a ballot was necessary to determine the level of support for the action. Lion Dairy and Drinks opposed the application on the grounds that the proposed action was not protected and that the ballot was not necessary.

The court considered the legal requirements for protected industrial action and the process for conducting a ballot. The court examined the nature of the proposed action and the relevant provisions of the Fair Work Act 2009 (Cth). The court also considered the evidence presented by both parties and the applicable legal principles. The court concluded that the proposed industrial action was not protected and that a ballot was not necessary. The court further found that the Union had not provided sufficient evidence to support its application.

The court dismissed the Union's application for a protected action ballot. The court held that the proposed industrial action was not protected and that the Union had not satisfied the legal requirements for a ballot. The court also found that the Union's application was not in the best interests of the employees and that the proposed action was not likely to be effective. The court ordered that the Union pay Lion Dairy and Drinks' costs of the application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established