United Workers' Union v Blowflex Mouldings Pty Ltd

[2021] FWC 6605

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Blowflex Mouldings Pty Ltd
(B2021/1228)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 DECEMBER 2021

Proposed protected action ballot of employees of Blowflex Mouldings 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 Blowflex Mouldings Pty Ltd. (Respondent).

[2] On 14 December 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 Ms Jilian Batt 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 PR736752.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought a declaration from the Fair Work Commission that a proposed protected action ballot of employees of Blowflex Mouldings Pty Ltd was valid and could be held. The dispute arose from the union's intention to conduct a ballot of employees to determine their willingness to take protected industrial action. Blowflex Mouldings Pty Ltd opposed the union's application, arguing that the ballot was not valid because it did not comply with certain procedural requirements. The Fair Work Commission was the court in which this dispute was heard.

The primary legal issue before the Commission was whether the union's proposed ballot complied with the procedural requirements set out in the Fair Work Act 2009. Specifically, the Commission needed to determine whether the union had provided Blowflex Mouldings Pty Ltd with adequate notice of the ballot and whether the ballot notice contained all the required information. The Commission also had to consider whether the ballot notice was delivered to employees in a manner that was likely to bring it to their attention.

In its decision, the Commission found that the union's proposed ballot did not comply with the procedural requirements set out in the Fair Work Act. The Commission held that the union had not provided Blowflex Mouldings Pty Ltd with adequate notice of the ballot, as the notice did not include all the required information. Additionally, the Commission found that the ballot notice was not delivered to employees in a manner that was likely to bring it to their attention, as it was not provided to employees at least seven days before the ballot was to be held. As a result, the Commission refused the union's application for a declaration that the proposed ballot was valid and could be held.

The Fair Work Commission refused the union's application for a declaration that the proposed ballot was valid and could be held. The Commission found that the union had not provided adequate notice of the ballot and that the ballot notice was not delivered to employees in a manner that was likely to bring it to their attention. The Commission's decision highlights the importance of complying with the procedural requirements set out in the Fair Work Act when conducting a ballot of employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established