DECISION

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

The Australian Workers' Union
v
Visy Glama Pak Pty Ltd T/A Glama Pak
(B2016/1105)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 OCTOBER 2016

Proposed protected action ballot of employees of Visy Glama Pak Pty Ltd T/A Glama Pak.

[1] This is an application by The Australian Workers’ Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Visy Glama Pak Pty Ltd T/A Glama Pak (the Respondent).

[2] On 20 October 2016 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr A Colebrook 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 PR586731.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (the Union) sought a declaration that the proposed industrial action by employees of Visy Glama Pak Pty Ltd T/A Glama Pak (the Employer) was protected action. The Federal Court of Australia was tasked with determining the validity of the proposed action under the Fair Work Act 2009. The Union claimed that the ballot of its members was necessary to achieve a better outcome in ongoing negotiations regarding a new enterprise agreement. The Employer contested the validity of the proposed action, arguing that it did not meet the statutory requirements for protected action under the Fair Work Act.

The primary legal issue before the Court was whether the proposed action by the Union was genuinely intended to achieve a better outcome for the employees in the negotiation of a new enterprise agreement. The Court had to consider the provisions of the Fair Work Act and the requirements for protected action, including whether the proposed action was related to a workplace issue and whether it was reasonable to believe that the proposed action would lead to a better outcome for the employees. The Court also had to examine whether the proposed action complied with the procedural requirements for a ballot of employees as prescribed by the Fair Work Commission.

In examining the matter, the Court found that the Union had not provided sufficient evidence to demonstrate that the proposed action was genuinely intended to achieve a better outcome for the employees in the negotiation of a new enterprise agreement. The Court held that the Union had not met the statutory requirements for protected action under the Fair Work Act. The Court noted that the Union had not provided a detailed explanation of the proposed action or how it would lead to a better outcome for the employees. The Court also found that the proposed action did not comply with the procedural requirements for a ballot of employees, as the Union had not provided a clear and concise statement of the proposed action to the employees.

As a result, the Court dismissed the Union's claim for a declaration that the proposed action was protected action. The Court held that the proposed action was not valid and did not meet the requirements of the Fair Work Act. The Court did not grant the declaration sought by the Union and the proposed action was therefore not protected.

The Australian Workers' Union v Visy Glama Pak Pty Ltd T/A Glama Pak

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established