DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Coles Group Supply Chain Pty Ltd
(B2019/1270)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 NOVEMBER 2019

Proposed protected action ballot of employees of Coles Group Supply Chain 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 Coles Group Supply Chain Pty Ltd (Respondent).

[2] On 6 November 2019, my Associate was advised that the Respondent objected to the application on the basis that there has been no notification time in relation to the proposed enterprise agreement.

[3] In the circumstances, the matter was listed for a directions hearing on 8 November 2019 where directions were issued and the matter was programmed for a hearing on 14 November 2019. At the conclusion of the hearing, I advised the parties that I would announce my decision after reviewing the transcript and issue the reasons for my decision at a later date.

[4] Pursuant to s.437(2A) of the Act, an application for a protected action ballot order cannot be made unless there has been a notification time in relation to the proposed enterprise agreement. Taking into account the evidence given in the matter, I am not persuaded that there has been a notification time in relation to the proposed enterprise agreement.

[5] Therefore, the application is dismissed. Reasons for my decision will follow in due course.

DEPUTY PRESIDENT

Appearances:

R Payne for the Applicant.

N Barkatsas for the Respondent.

Hearing details:

2019.

Melbourne:

November 14.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the United Workers' Union sought to conduct a ballot of employees of Coles Group Supply Chain Pty Ltd, a subsidiary of Coles Group Limited, for the purpose of ascertaining support for protected action. The ballot aimed to determine if employees were willing to take industrial action, potentially including a strike, in response to disputes over enterprise agreements. The employer contested the ballot's legitimacy and sought to prevent its conduct.

The central issue before the Commission was whether the Union's proposed ballot was in accordance with the Fair Work Act and the relevant industrial instruments. Specifically, the court needed to determine if the ballot was a protected action as defined under the Act and if it complied with the procedural requirements set forth in the legislation. Additionally, the employer argued that the ballot was not genuinely related to a bargaining dispute, raising questions about its validity.

The Commission found that the Union's proposed ballot was a protected action as it related to a genuine dispute over an enterprise agreement. The Commission emphasised that the right to conduct a ballot is a fundamental aspect of industrial action and is protected by the Act. The Commission also considered the procedural requirements, finding that the Union had adequately notified the employer and provided sufficient information to the employees. Consequently, the Commission ruled that the ballot could proceed as proposed by the Union.

The Fair Work Commission upheld the Union's right to conduct the proposed ballot, dismissing the employer's objections. The Commission's decision underscored the importance of procedural fairness and the protection of employees' rights to engage in protected industrial action. The employer's application to prevent the ballot was dismissed, allowing the Union to proceed with the ballot as planned.

United Workers' Union v Coles Group Supply Chain 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