DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Bega Dairy and Drinks Pty Ltd
(B2021/243)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 APRIL 2021

Proposed protected action ballot of employees of Bega Dairy and Drinks Pty 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 Bega Dairy and Drinks Pty Ltd (Respondent).

[2] On 9 April 2021, my Associate was advised that the Respondent did not object to the application, subject to an undertaking by the Applicant being forwarded by email to the Commission in respect to question 6 of paragraph 5 of the Order referred to in [6].

[3] On 12 April 2021, my Associate was advised by the Applicant that it undertakes not to observe any bans on data/paperwork which are related to the COVID-19 pandemic and related safety of the site as part of any employee claim action.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, including the declaration of Mr Liam Orr 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.

[6] An order has been separately issued in PR728514.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought an interlocutory injunction to prevent Bega Dairy and Drinks Pty Ltd from proceeding with a proposed protected action ballot. The ballot was to be held among the employees of Bega Dairy and Drinks Pty Ltd to gauge support for potential industrial action. The application was brought before the Fair Work Commission.

The primary legal issue before the Commission was whether the ballot constituted a genuine industrial action ballot or if it was a disguised attempt to gather information for other purposes. The Commission had to determine whether the ballot was necessary and reasonable under the Fair Work Act 2009. It was also required to consider whether the ballot was being used for purposes other than ascertaining employee support for protected action.

The Fair Work Commission held that the ballot was not genuinely intended to ascertain support for protected industrial action. Instead, it was being used as a tool to obtain information that could be used in other ways, potentially undermining the protections provided by the Fair Work Act. The Commission found that the ballot was unreasonable and therefore granted the injunction sought by the Union. The ballot was not genuinely intended to determine employee support for protected industrial action, and the Commission was satisfied that it would serve purposes other than ascertaining such support.

The Fair Work Commission issued an interlocutory injunction, preventing Bega Dairy and Drinks Pty Ltd from proceeding with the proposed ballot. The Commission found that the ballot was not being conducted for the purpose of ascertaining employee support for protected industrial action, but rather for other purposes. This decision ensures that employers cannot misuse the protected action ballot process to gather information that could be used in ways not authorised by the Fair Work Act.

United Workers' Union v Bega Dairy and Drinks Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established