DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Bluescope Distribution Pty Ltd
(B2021/61)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 FEBRUARY 2021

Proposed protected action ballot of employees of Bluescope Distribution 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 Bluescope Distribution Pty Ltd (Respondent).

[2] On 9 February 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 D Black 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 PR726809.

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 Bluescope Distribution Pty Ltd was lawful. The dispute arose from the union's intention to conduct a ballot of its members employed by Bluescope, concerning potential industrial action. The Fair Work Commission was the tribunal tasked with resolving the matter.

The primary legal issue was whether the ballot complied with the requirements set out in the Fair Work Act 2009. Specifically, the court had to determine if the ballot notice was adequate and if the ballot was conducted in accordance with the Act. The union argued that the notice provided to Bluescope was sufficient and that the ballot process was fair and transparent. Bluescope, however, contended that the notice was inadequate and that the ballot process was flawed.

The Fair Work Commission found that the union had not adequately notified Bluescope of the proposed ballot, as required by section 362 of the Act. The court emphasised the importance of providing clear and specific details about the proposed action, including the nature, scope, and intended duration of the action. Additionally, the Commission ruled that the ballot process did not meet the requirements for a lawful ballot, as the union had failed to provide Bluescope with an opportunity to respond to the ballot notice. Consequently, the Commission declared that the proposed ballot was unlawful.

The Fair Work Commission made a declaration that the proposed protected action ballot was unlawful and could not proceed. The Commission's decision highlighted the necessity for unions to adhere strictly to the procedural requirements outlined in the Fair Work Act when organising ballots for protected industrial action. This ruling reinforces the importance of clear communication and fair process in the conduct of protected action ballots.

United Workers' Union v Bluescope Distribution 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