DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Australian Health & Nutrition Association Limited
(B2020/310)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JUNE 2020

Proposed protected action ballot of employees of Australian Health & Nutrition Association 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 Australian Health & Nutrition Association Limited (Respondent).

[2] On 15 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 PR720205.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Australian Health & Nutrition Association Limited, the dispute centred around a proposed protected action ballot of the employees of the Australian Health & Nutrition Association Limited. The Union sought to conduct a ballot among the employees to gauge support for protected industrial action, a request which the company contested on several grounds, including the scope and nature of the proposed action. The matter was heard by the Fair Work Commission.

The legal issues before the Commission involved the interpretation and application of sections of the Fair Work Act 2009, specifically in relation to the procedural requirements for conducting a protected action ballot. The Union argued that the requirements had been met and that the ballot should proceed, while the company contended that the ballot notice was inadequate and failed to meet the statutory criteria. The Commission was required to determine whether the ballot notice complied with the legislative requirements and whether the proposed industrial action was protected action within the meaning of the Act.

The Commission found that the ballot notice did not sufficiently detail the proposed action and the basis upon which it was protected, which was a critical requirement under the Act. The notice was deemed inadequate because it did not provide the necessary information to enable the employees to make an informed decision about participating in the proposed action. As a result, the Commission ruled that the proposed ballot did not meet the statutory requirements and could not proceed. The Union's application was dismissed.

The Fair Work Commission's decision resulted in the Union's application for a protected action ballot being refused. The Commission's ruling was based on the inadequacy of the ballot notice provided by the Union, which failed to meet the specific requirements outlined in the Fair Work Act 2009. The company's objections were upheld, and the employees were not permitted to proceed with the ballot as proposed.

United Workers' Union v Australian Health & Nutrition Association Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established