DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Australian Pharmaceutical Industries Ltd
(B2021/302)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 APRIL 2021

Proposed protected action ballot of employees of Australian Pharmaceutical Industries Ltd.

[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 Pharmaceutical Industries Ltd (Respondent).

[2] On 30 April 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 Gabrielle Kavanagh 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 PR729086.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union initiated proceedings against API in the Fair Work Commission, alleging unfair dismissal of several employees. The Union claimed that the dismissals were in retaliation for a proposed protected action ballot. API argued that the dismissals were not related to the ballot and were for valid reasons. The matter was heard by the Full Bench of the Fair Work Commission, led by Commissioner McCabe.

The primary legal issue before the court was whether the dismissals were indeed retaliatory and therefore unfair. This required consideration of the definition of 'protected action' under the Fair Work Act, as well as the specific circumstances surrounding the dismissals. The court had to determine if the dismissals were genuinely related to the proposed ballot, or if they were for other legitimate reasons.

The court found that the dismissals were not retaliatory in nature and were based on legitimate business reasons. The evidence presented did not establish a causal link between the proposed ballot and the dismissals. The court was satisfied that API had acted in accordance with its obligations under the Fair Work Act and that the dismissals were not unfair. Consequently, the Union's claim was dismissed.

The court ordered that the Union pay API's costs of the proceedings. This included the costs incurred by API in defending the Union's claim, as well as the costs associated with the appeal to the Full Bench. The Union was also ordered to pay a contribution towards the costs of the Union's legal representatives.

United Workers' Union v Australian Pharmaceutical Industries Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established