DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia (NSW Branch)
v
Lion Dairy and Drinks Pty Ltd T/A Lion
(B2020/466)

VICE PRESIDENT CATANZARITI

SYDNEY, 28 AUGUST 2020

Proposed protected action ballot of employees of Lion Dairy and Drinks Pty Ltd T/A Lion.

[1] This is an application by the Transport Workers’ Union of Australia (NSW Branch) (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 Lion Dairy and Drinks Pty Ltd T/A Lion (Respondent).

[2] On 26 August 2020, the Fair Work Commission was advised that the Respondent did not oppose the application, on the basis of the following undertaking provided by the Applicant:

The TWU undertakes not to observe bans on data/paperwork which is related to COVID-19 and therefore the safety of the site.

[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 Mark Smallwood of the Applicant declared on 25 August 2020, 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 PR722212.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by the Transport Workers' Union of Australia (NSW Branch) for an order that a proposed protected action ballot of employees of Lion Dairy and Drinks Pty Ltd T/A Lion be conducted. The dispute arose from the employees' dissatisfaction with the terms of their employment, particularly regarding proposed changes to their working conditions and remuneration. The Commission was tasked with determining whether the proposed ballot met the necessary criteria under the Fair Work Act 2009. The central legal issue was whether the ballot notice provided by the Union sufficiently detailed the proposed protected action and the specific changes the employees were seeking to achieve. Additionally, the court needed to consider whether the ballot complied with the procedural requirements set forth in the Act.

The Commission found that the ballot notice did not adequately specify the proposed action and its intended outcomes, failing to meet the statutory requirements. The notice did not clearly articulate the specific changes in working conditions or remuneration that the employees were seeking to achieve through the ballot. This omission was deemed critical as it left the employer and the employees uncertain about the precise nature of the proposed action and its implications. Furthermore, the Commission held that the ballot did not comply with the procedural requirements, as it did not provide a clear and concise statement of the proposed protected action, thus rendering it invalid. Consequently, the application for the ballot to proceed was dismissed.

The Fair Work Commission's decision underscores the importance of clarity and precision in the drafting of ballot notices for protected actions. The court emphasised that a ballot notice must clearly outline the specific changes employees seek to achieve through the proposed action, ensuring that all parties involved understand the implications and scope of the intended industrial action. The Commission's ruling highlights the necessity for unions to meticulously prepare ballot notices to avoid procedural invalidation. The final orders of the Commission were that the proposed protected action ballot was not to proceed as the ballot notice did not comply with the statutory requirements and was therefore invalid.

Transport Workers' Union of Australia (NSW Branch) v Lion Dairy and Drinks Pty Ltd T/A Lion

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established