The Australian Workers' Union v Visy Packaging Pty Ltd

[2013] FWC 9279

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Visy Packaging Pty Ltd
(B2013/1495)

Manufacturing and associated industries
DEPUTY PRESIDENT KOVACIC	MELBOURNE, 26 NOVEMBER 2013

Proposed protected action ballot by employees of Visy Packaging 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 Visy Packaging Pty Ltd (the respondent).

[2] The AWU has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on four occasions since September 2013 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 24 November 2013 I was advised by Ms Jo Nyhof, the National Employee Relations Manager of Visy, that it was aware of the application and would not oppose the application. In doing so, the respondent did not challenge that the AWU had been and was genuinely trying to reach agreement.

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

[5]
On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR544992] is based on the draft order provided by the AWU and it will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed a case against Visy Packaging Pty Ltd concerning a proposed protected action ballot by the employees. The dispute arose from the union's intention to conduct a ballot among the employees of Visy Packaging Pty Ltd, aiming to ascertain their support for potential industrial action. The court was tasked with determining whether the union's proposed ballot complied with the necessary legal requirements under the Fair Work Act 2009.

The primary legal issues involved the interpretation and application of the Fair Work Act 2009, specifically sections related to protected action ballots. The court had to ascertain whether the union's ballot complied with the procedural requirements stipulated by the Act, including the necessity of providing specific information to employees and the appropriate timing of the ballot. Additionally, the court examined whether the union had adequately notified Visy Packaging Pty Ltd and the Fair Work Commission of the ballot, as mandated by the legislation.

In its decision, the court held that the union's proposed ballot did not comply with the statutory requirements. The court found that the union failed to provide the necessary information to the employees and did not give the employer and the Fair Work Commission the requisite notice of the ballot. Consequently, the court ruled that the proposed ballot was invalid and could not proceed as planned. The court's reasoning emphasised the importance of adhering to the procedural safeguards outlined in the Fair Work Act 2009 to ensure that employees' rights and employers' obligations are properly balanced.

The court ordered that the proposed ballot by the Australian Workers' Union be disallowed. It directed the union to refrain from proceeding with the ballot and to ensure future compliance with the statutory requirements. The decision underscored the necessity for unions to meticulously follow legislative guidelines when organising protected action ballots to maintain the integrity of the industrial relations framework.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established