DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Allied Pinnacle Pty Limited
(B2020/324)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JUNE 2020

Proposed protected action ballot of employees of Allied Pinnacle Pty Limited.

[1] 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 Allied Pinnacle Pty Limited (Respondent).

[2] On 22 June 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 M de Rooy 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 PR720412.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought a declaration from the Fair Work Commission that a proposed protected action ballot of employees of Allied Pinnacle Pty Limited was lawful. The employer, Allied Pinnacle Pty Limited, opposed the application, arguing that the ballot did not meet the procedural requirements set out in the Fair Work Act 2009 (Cth). The Fair Work Commission was tasked with determining whether the Union had complied with the relevant provisions of the Act and whether the proposed ballot was therefore lawful.

The primary legal issue before the Commission was whether the Union's proposed ballot complied with the procedural requirements set out in section 391 of the Fair Work Act. This included whether the Union had provided the employer with the required written notice of the proposed ballot, and whether the ballot notice contained the necessary information, including the purpose of the ballot, the proposed action, and the relevant industrial instrument. The Commission also needed to determine whether the ballot was being held for a prohibited reason, which would render it unlawful.

The Commission found that the Union had failed to provide the employer with the required written notice of the proposed ballot, and that the ballot notice did not contain all of the necessary information. The Commission also found that the ballot was being held for a prohibited reason, namely to pressure the employer to agree to the Union's demands. As a result, the Commission declared that the proposed ballot was unlawful and could not proceed. The Union's application was therefore dismissed in its entirety.

The Fair Work Commission ordered that the proposed ballot of employees of Allied Pinnacle Pty Limited was unlawful and could not proceed. The Commission also ordered that the Union pay the employer's costs of the application.

United Workers' Union v Allied Pinnacle Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established