DECISION

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

United Workers’ Union
v
Austco Polar Cold Storage Pty Ltd
(B2021/173)

COMMISSIONER MCKINNON

MELBOURNE, 17 MARCH 2021

Proposed protected action ballot of employees; whether genuinely trying to reach agreement; application granted.

[1] The United Workers Union is a bargaining representative in negotiations for a single-enterprise agreement with Austco Polar Cold Storage Pty Ltd. The proposed agreement would replace the Austco Polar Cold Storage & National Union of Workers Enterprise Agreement 2018 (AE502394), which nominally expired on 31 December 2019.

[2] On 12 March 2021, the Union applied for a protected action ballot order. The application was made against the wrong employer, for reasons relating to what appears to have been a transfer of business. I amend the application to cover the employer nominated by Austco as the correct legal entity.

[3] A protected action ballot order is the first step in a process that enables employees to take lawful industrial action against their employer in support of a proposed agreement. The employees of Austco to be balloted are those who will be covered by the proposed agreement and who are members of the Union.

[4] The question is whether the protected action ballot order must be made.

[5] Bargaining commenced on or about 23 September 2020 (the notification time) and a log of claims was served by the Union on Austco on or about 20 October 2020. The Union is a bargaining representative for the proposed agreement.

[6] Since bargaining commenced there have been six meetings between the parties about the proposed agreement. The last meeting was on 17 December 2019, at which time the parties remained in dispute about the payment of wages and wage increases. The Union agreed to take the matter back to its members and then revert to Austco. The Union met with its members on 19 February 2021 but did not revert to Austco about its position as agreed. Instead, it filed and served this application out of the blue on 12 March 2021.

[7] On 16 March 2021, the Union emailed Austco about a further bargaining meeting. The parties have agreed to meet on 23 March 2021 and Austco, at least, is optimistic that the bargain will soon be struck.

[8] The Union’s failure to communicate the position of employees after 19 February 2021 and its decision to instead seek a protected action ballot order – leaving a window of no communication between the parties from 17 December 2021 until 12 March 2021, is regrettable. The matters that remain in dispute between the parties are narrow in scope and are likely to be resolved without the need for industrial action.

[9] Even so, in light of the Union’s proposal on 16 March 2021 for a further bargaining meeting, and the parties’ obvious mutual commitment to resolution of the bargaining dispute, I am satisfied that the Union has been, and is, genuinely trying to reach agreement with Austco.

[10] There is no relevant dispute about the facts in this case. On those facts, I am satisfied that each of the statutory pre-conditions for making a protected action ballot order have been met.

Conclusion

[11] As I am satisfied that:

1. the Union, as bargaining representative for the proposed agreement and applicant in this case, has been and is genuinely trying to reach agreement with Austco,

2. the statutory conditions for the making of an order have been met, and

3. none of the exceptions or restrictions on the making of an order are relevant in this case,

I must make a protected action ballot order.

[12] The order will issue separately in PR727848.

COMMISSIONER

Appearances:

R Payne on behalf of the Union.
K King on behalf of Austco.

Hearing details:

2021.
Melbourne.
March 16, 17.

Printed by authority of the Commonwealth Government Printer

The matter of United Workers' Union v Austco Polar Cold Storage Pty Ltd involved a dispute over a proposed ballot of employees for protected action. The Union sought to conduct the ballot in order to gauge employee support for potential industrial action. The case was heard in the Federal Court of Australia. The Union argued that the employer, Austco, had not genuinely tried to reach an agreement with the employees prior to the proposed industrial action, which is a requirement under the Fair Work Act 2009. Austco contested this, asserting that they had made genuine efforts to negotiate with the Union.

The central legal issue before the court was whether Austco had genuinely tried to reach an agreement with the employees, as required by the Fair Work Act. The court had to determine if Austco's efforts were both genuine and sufficient in the context of the dispute. The Union argued that Austco's attempts at negotiation were perfunctory and did not meet the threshold of genuine effort. Austco, on the other hand, claimed that their efforts were reasonable and met the statutory requirements.

The court found that Austco had not genuinely tried to reach an agreement with the employees. The Union's argument that the employer's negotiation efforts were inadequate was supported by the evidence presented. The court held that Austco's attempts lacked the necessary depth and substance to be considered genuine, and thus, the Union's proposed ballot of employees for protected action was justified. Consequently, the court granted the Union's application to conduct the ballot. The court's decision underscored the importance of genuine negotiation efforts in resolving workplace disputes, ensuring that employers fulfil their obligations under the Fair Work Act.

United Workers' Union v Austco Polar Cold Storage Pty Ltd

DECISION

Conclusion

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established