DECISION

Fair Work Act 2009
s.437—Protected action

Transport Workers’ Union of Australia
v
Saputo Dairy Australia Pty Ltd
(B2020/122)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 FEBRUARY 2020

Proposed protected action ballot of employees of Saputo Dairy Australia Pty Ltd.

[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 Saputo Dairy Australia Pty Ltd (Respondent).

[2] On 28 February 2020, my Associate was advised that the Respondent did not object to 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 G Fleming 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 PR717135.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was an application by Saputo Dairy Australia Pty Ltd to prevent a proposed protected action ballot by the Transport Workers' Union of Australia, which aimed to facilitate a strike by the employees of Saputo. The Commission had to decide whether the ballot could proceed under the Fair Work Act 2009. The dispute arose from negotiations over an enterprise agreement between the parties, which had failed to result in a resolution.

The central issue before the Commission was whether the ballot could proceed, given the legal requirements and obligations of the parties under the Fair Work Act. Specifically, the Commission had to determine if the Union had complied with the procedural requirements for protected action and if the proposed strike was in relation to a protected action. Additionally, the Commission needed to assess whether the proposed industrial action was likely to cause significant economic harm to Saputo, which could be a ground for prohibiting the ballot.

The Commission found that the Union had complied with the necessary procedural requirements and that the proposed strike was indeed in relation to a protected action. However, the Commission also concluded that the proposed industrial action was likely to cause significant economic harm to Saputo, which was a factor that could be considered in determining whether the ballot should proceed. Despite this, the Commission held that the potential economic harm did not outweigh the Union's right to hold a ballot. The Commission ultimately decided that the ballot could proceed, subject to certain conditions to mitigate the potential harm.

The Fair Work Commission ordered that the ballot could proceed, provided that the Union gave Saputo reasonable notice of the ballot results and allowed Saputo a reasonable opportunity to respond. The Commission also imposed conditions to ensure that the industrial action did not cause unnecessary economic harm. This decision was made in light of the legal obligations and rights of both parties under the Fair Work Act.

Transport Workers' Union of Australia v Saputo Dairy Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established