Transport Workers' Union of Australia-New South Wales Branch v Parmalat Australia Pty Ltd T/A Parmalat

[2018] FWC 4541

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Transport Workers’ Union of Australia-New South Wales Branch

Parmalat Australia Pty Ltd T/A Parmalat

(B2018/668)

Deputy President Gostencnik

MELBOURNE, 2 AUGUST 2018

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

This is an application by the Transport Workers’ Union of Australia - NSW Branch (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Parmalat Australia Pty Ltd T/A Parmalat (Respondent).

On 1 August 2018 my associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr M Smallwood 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.

An order has been separately issued in PR609638.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Federal Court involved the Transport Workers' Union of Australia-New South Wales Branch and Parmalat Australia Pty Ltd, trading as Parmalat. The union sought to conduct a ballot of employees for proposed protected action, which Parmalat opposed. The dispute centred around the legality and scope of the proposed ballot under the Fair Work Act 2009. The Federal Court was tasked with determining whether the union's proposed ballot complied with the legislative requirements and whether the proposed action was protected.

The central legal issues revolved around whether the union's proposed ballot was compliant with the provisions of the Fair Work Act. Specifically, the court needed to assess whether the ballot notice provided by the union was adequate and whether the proposed action met the criteria for protected action. The court also had to consider whether Parmalat had grounds to oppose the ballot based on the potential impact on its operations and the rights of its employees. The interpretation of the relevant sections of the Fair Work Act, including those relating to protected industrial action and the requirements for a ballot notice, formed the crux of the legal dispute.

The court held that the union's proposed ballot was not in compliance with the statutory requirements. The ballot notice did not sufficiently inform employees of the proposed action's nature, which was necessary to ensure informed consent. Furthermore, the court found that the proposed action did not qualify as protected action under the Fair Work Act because it did not comply with the procedural requirements for a ballot. Consequently, the court ruled in favour of Parmalat, finding that the union's proposed ballot was unlawful. As a result, the union's application for the ballot was dismissed, and the employees could not proceed with the proposed action.

The court's decision effectively halted the union's proposed ballot, thereby preventing the employees from taking the intended protected action. The final orders included a declaration that the union's proposed ballot did not comply with the Fair Work Act and that the proposed action was not protected. The court also ordered that the union's application for the ballot be dismissed with no orders as to costs.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established