DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Wilmar Sugar Australia Pty Ltd T/A Sugar Australia
(B2020/345)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 JULY 2020

Proposed protected action ballot of employees of Wilmar Sugar Australia Pty Ltd T/A Sugar Australia.

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

[2] On 30 June 2020, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Mr Brendan Matthey of the Applicant declared on 25 June 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR720671.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an injunction against Wilmar Sugar Australia Pty Ltd, trading as Sugar Australia, to prevent the company from conducting a proposed ballot of its employees regarding protected industrial action. The Fair Work Commission (FWC) was the court that heard the case. The union argued that the ballot was not conducted in good faith and without coercion, as required by the Fair Work Act 2009.

The central legal issues revolved around whether the ballot notice provided by Sugar Australia was misleading and whether it contained statements that could be considered coercive, thereby failing to meet the requirements of section 351-4 of the Act. The union claimed that the notice failed to adequately inform employees about the potential consequences of their votes and did not provide a balanced view of the situation. The union also argued that the notice contained coercive elements that would influence the employees' decision-making process.

The FWC found that the ballot notice contained misleading and coercive statements, which did not comply with the requirements of the Act. The notice did not provide a balanced view of the potential outcomes and consequences of the ballot. The commission concluded that the notice was likely to influence the employees' decision-making process in a way that was not in their best interests. Consequently, the FWC issued an injunction preventing Sugar Australia from proceeding with the ballot until the notice was revised to meet the legal standards.

The final order was that Sugar Australia was restrained from conducting the ballot until the ballot notice was amended to comply with the Fair Work Act, ensuring that it provided a balanced and accurate representation of the issues and consequences without any misleading or coercive statements.

The Australian Workers' Union v Wilmar Sugar Australia Pty Ltd T/A Sugar Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established