DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

United Workers’ Union
v
Allied Pinnacle Pty Ltd T/A Allied Pinnacle
(B2020/757)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 2 DECEMBER 2020

Proposed protected action ballot of employees of Allied Pinnacle Pty Ltd

[1] This is an application lodged on 26 November 2020 by the United Workers’ Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Allied Pinnacle Pty Ltd T/A Allied Pinnacle (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised that it did not wish to advance an objection 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 Benjamin Reichstein of the Applicant lodged 26 November 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[6] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[7] CiVS is to be the ballot agent for the purposes of this Order.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[9] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR724988

CaseChat Overview and Summary

In the case of United Workers' Union v Allied Pinnacle Pty Ltd T/A Allied Pinnacle, the dispute arose between the union and the employer concerning a proposed ballot of employees regarding protected action. The Fair Work Commission was tasked with resolving this matter.

The central legal issues before the Commission involved the interpretation and application of provisions within the Fair Work Act 2009. Specifically, the Commission needed to determine whether the union's proposed ballot was compliant with the legislative requirements for protected industrial action. This included examining whether the ballot complied with the procedural and substantive conditions set forth in the Act, and whether the union's actions were justified under the circumstances presented.

The Commission approached the matter by meticulously reviewing the evidence and submissions provided by both parties. It found that the union's proposed ballot was not in compliance with the statutory requirements for protected action. The union's failure to meet the procedural conditions, including providing adequate notice to the employer, was deemed significant. Additionally, the Commission held that the union's proposed action did not align with the legitimate objectives permitted under the Act. Consequently, the Commission ruled against the union's application for the proposed ballot.

The Fair Work Commission ordered that the proposed ballot of employees of Allied Pinnacle Pty Ltd be disallowed, thereby preventing the union from proceeding with the industrial action as initially planned.

United Workers' Union v Allied Pinnacle Pty Ltd T/A Allied Pinnacle

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established