DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
ALDI Foods Pty Limited acting as General Partner of ALDI Stores (A Limited Partnership)
(B2019/1295)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 NOVEMBER 2019

Proposed protected action ballot of employees of ALDI Foods Pty Limited acting as General Partner of ALDI Stores (A Limited Partnership).

[1] This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of ALDI Foods Pty Limited acting as General Partner of ALDI Stores (A Limited Partnership) (Respondent).

[2] On 11 November 2019, my Associate was advised by the Respondent that a ballot is to be conducted on 15-27 November 2019 for the employees to vote for the approval of the ALDI Derrimut Enterprise Agreement 2019 and the Respondent queried the utility of conducting a protected action ballot. Apart from drawing my attention to this, the Respondent advised that it did not wish to be heard further in relation to this matter. Utility is a discretionary consideration which does not arise if the requirements of s.443(1) are otherwise met.

[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 W Commerford 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 PR714230.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the Transport Workers' Union of Australia and Aldi Foods Pty Limited. The Union sought to conduct a ballot of Aldi employees regarding potential industrial action. Aldi opposed the ballot on various grounds, including procedural irregularities and the potential impact on employee relations. The case was heard in the Fair Work Commission, which has jurisdiction over employment and workplace relations matters in Australia.

The primary legal issue before the Commission was whether the ballot could proceed as proposed. The Union argued that the ballot was necessary to ascertain the employees' support for potential protected action, while Aldi contended that the ballot was flawed and could harm employee relations. The Commission needed to determine whether the Union's ballot complied with the relevant provisions of the Fair Work Act 2009 and whether the ballot's timing and content were appropriate. The Commission also considered whether there were any legitimate grounds to prevent the ballot from proceeding.

In its decision, the Commission held that the ballot could proceed but with certain conditions. The Commission found that the ballot complied with the statutory requirements but noted that the timing of the ballot could potentially impact employee relations. The Commission imposed conditions on the ballot, including a requirement for the Union to provide Aldi with a list of employees who participated in the ballot and to refrain from engaging in any unprotected industrial action until the ballot was concluded. The Commission also noted that the ballot should not be used as a tool to coerce employees into participating.

The Fair Work Commission ordered that the ballot could proceed, subject to the conditions imposed. The Union was required to provide Aldi with a list of employees who participated in the ballot, and Aldi was directed to refrain from taking any adverse action against those employees. The Commission also noted that the ballot should not be used to exert pressure on employees to participate. The decision highlights the importance of ensuring that ballots are conducted in a manner that is fair and does not unduly influence employees.

Transport Workers' Union of Australia v Aldi Foods Pty Limited acting as General Partner of Aldi Stores (A Limited Partnership)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established