United Workers’ Union v

[2022] FWC 232

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Dulux Group Australia Pty Ltd T/A Dulux Merrifield
(B2022/45)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 FEBRUARY 2022

Proposed protected action ballot of employees of Dulux Group Australia Pty Ltd T/A Dulux Merrifield.

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 Dulux Group Australia Pty Ltd T/A Dulux Merrifield (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 PR738049.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission presided over an application by the United Workers' Union against Dulux Group Australia Pty Ltd, concerning a proposed ballot of employees. The matter was brought under section 437 of the Fair Work Act 2009, seeking permission for a protected action ballot. The application was made by the union, and the respondent, Dulux Group Australia Pty Ltd, did not object to the application, leading to the decision being made on the provided documents without a hearing. The case aimed to determine whether the union's proposal for a ballot met the legal criteria under the Act.

The legal issues in this case revolved around the conditions required for a protected action ballot under the Fair Work Act 2009. Specifically, the court had to consider whether the union had genuinely attempted to reach an agreement with the employer and whether the notification period for the proposed agreement was correctly observed. The union had to demonstrate that it had taken adequate steps in bargaining with the employer and that it had been actively seeking to reach a resolution.

The Deputy President of the Fair Work Commission, Clancy, found that the union had genuinely tried to reach an agreement with the employer, as evidenced by the declaration provided by Mr. Godfrey Moase of the union. The declaration outlined the steps taken by the union in its negotiations with the employer. Furthermore, the Deputy President was satisfied that the notification period for the proposed agreement had been met, and the requirements under section 443(1) of the Act had been fulfilled. Consequently, the court granted the union's application for a protected action ballot.

The Fair Work Commission issued an order permitting the United Workers' Union to proceed with the ballot as per the provisions of the Fair Work Act 2009. The order was separately issued in PR738049. The decision was made on 4 February 2022, and the matter was concluded without the need for a hearing, based on the documentation and declarations provided by the union.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established