DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

United Workers' Union
v
Bollore Logistics Australia Pty Ltd
(B2019/1318)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 NOVEMBER 2019

Proposed protected action ballot of employees of Bollore Logistics Australia 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 Bollore Logistics Australia Pty Ltd (Respondent).

[2] On 19 November 2019, 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 J Dixon 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 PR714396.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Bollore Logistics Australia Pty Ltd, the respondent, Bollore Logistics Australia Pty Ltd, sought an injunction to prevent the applicant union from conducting a ballot of employees regarding potential protected action. The applicant union aimed to conduct the ballot to gauge employee support for potential protected action in response to the employer's proposed industrial changes. The Federal Circuit Court was tasked with determining whether the union's proposed ballot was lawful and whether an injunction should be granted to prevent its conduct.

The central legal issue before the court was whether the proposed ballot by the union constituted protected action under the Fair Work Act 2009 (Cth). The court had to consider the definition of protected action, the purpose of the proposed ballot, and whether the ballot was reasonably necessary to achieve the intended protected action. Additionally, the court needed to assess whether the injunction sought by the employer was appropriate and whether it would unduly infringe upon the union's rights.

The court found that the proposed ballot was not protected action as it did not involve any action that employees were authorised to take under the Act. The ballot was intended to measure employee support for potential protected action, which is not itself protected action. The court held that the ballot was a preliminary step and not an action taken by employees. Consequently, the union's proposed ballot did not fall within the definition of protected action, and the court refused to grant the injunction sought by the employer.

The court's decision highlights the importance of distinguishing between actions that are protected under the Fair Work Act and preparatory steps towards such actions. The refusal to grant the injunction underscores the protection afforded to unions in organising and gauging support for potential protected action. The court's ruling reinforces the legal distinction between preparatory activities and actual protected action, ensuring that unions can effectively organise without undue interference from employers.

United Workers' Union v Bollore Logistics Australia 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