United Workers’ Union v

[2022] FWC 235

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Sealed Air Australia Pty Ltd
(B2022/46)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 FEBRUARY 2022

Proposed protected action ballot of employees of Sealed Air Australia Pty Ltd.

This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Sealed Air Australia Pty Ltd (Respondent).

On 4 February 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Godfrey Moase 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 PR738065.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the United Workers' Union seeking a protected action ballot order in relation to certain employees of Sealed Air Australia Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Union sought the ballot in an effort to secure better terms and conditions of employment for its members. The matter was determined by Deputy President Clancy in Melbourne on 4 February 2022. Sealed Air Australia did not object to the application, and the matter was resolved on the papers without the need for a hearing.

The central legal issue before the Commission was whether the requirements of section 443(1) of the Act had been satisfied for the Union to proceed with a protected action ballot. This section requires the Union to have engaged in good faith bargaining with the employer, Sealed Air Australia, and to have given the employer reasonable notification of the proposed agreement. The Union provided a declaration from its representative, Mr Godfrey Moase, which detailed the steps taken in bargaining with Sealed Air Australia and affirmed the Union's genuine efforts to reach an agreement. The Deputy President was satisfied, based on the evidence, that the notification period had been met and that the Union had met the statutory requirements.

The Fair Work Commission found that the Union had satisfied the conditions set out in section 443(1) of the Act. Given the evidence presented, Deputy President Clancy concluded that the Union had genuinely attempted to reach an agreement with Sealed Air Australia and had provided the required notification. Consequently, the application for a protected action ballot order was granted. An order was separately issued in PR738065.

The Deputy President's decision underscores the importance of good faith bargaining and proper notification in the process of seeking a protected action ballot. The Commission's determination allows the United Workers' Union to proceed with the ballot, enabling its members to take protected industrial action if necessary to achieve their objectives.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established