DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Americold Logistics Limited
(B2021/483)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 JUNE 2021

Proposed protected action ballot of employees of Americold Logistics 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 Americold Logistics Limited (Respondent).

[2] On 29 June 2021, 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 declaration of Mr Casey Whelan 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 PR731133.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to conduct a protected action ballot among employees of Americold Logistics Limited, a logistics company involved in cold storage. Americold contested the ballot on the grounds that it was not a genuine protected action, as it was not intended to be a strike or other traditional form of industrial action but rather a form of economic leverage. The case was heard in the Fair Work Commission, which has jurisdiction over matters involving protected industrial action under the Fair Work Act 2009 (Cth).

The central legal issue before the Commission was whether the proposed ballot constituted a protected action as defined by the Act. Specifically, the Commission had to determine whether the ballot was genuinely intended to be a form of industrial action, as it did not involve a cessation of work or a work stoppage. The Commission also needed to consider whether the ballot could be considered a form of industrial action even though it did not involve a traditional strike or work stoppage.

The Commission found that the proposed ballot was indeed a form of protected action. It held that the Act does not limit protected industrial action to traditional forms such as strikes or work stoppages, and that other forms of action, such as a ballot, could be protected if they are genuinely intended to be a form of industrial action. The Commission further found that the ballot was genuinely intended to be a form of industrial action, as it was intended to be a means of economic leverage and not merely a means of gathering information or expressing dissatisfaction. The Commission rejected Americold's argument that the ballot was not a genuine form of industrial action, as it was not a traditional strike or work stoppage.

The Commission ordered that the proposed ballot be treated as a protected action, and that Americold Logistics Limited must not take any adverse action against employees who participate in the ballot. The Commission also ordered that the ballot be conducted in accordance with the procedures set out in the Fair Work Act. This decision provides guidance on the scope of protected industrial action under the Act and confirms that non-traditional forms of action, such as ballots, can be protected if they are genuinely intended to be a form of industrial action.

United Workers' Union v Americold Logistics Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established