United Workers' Union v DuluxGroup Australia Pty Ltd T/A Dulux Merrifield

[2022] FWC 1366

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

DuluxGroup Australia Pty Ltd T/A Dulux Merrifield

(B2022/483)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 MAY 2022

Proposed protected action ballot of employees of DuluxGroup Australia Pty Ltd T/A Dulux Merrifield

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 DuluxGroup Australia Pty Ltd T/A Dulux Merrifield (the Respondent).

On 31 May 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Godfrey Moase 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.

An order has been separately issued in PR742166.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of DuluxGroup Australia Pty Ltd T/A Dulux Merrifield. This application was made under section 437 of the Fair Work Act 2009. The Union claimed that it had been genuinely trying to reach agreement with the Respondent but had not been successful, and therefore sought to ballot its members on the possibility of protected action. The Respondent did not object to the application, and the Deputy President, Clancy, determined the matter on the papers without holding a hearing.

The primary legal issue before the Deputy President was whether the Union had met the requirements of section 443(1) of the Fair Work Act 2009, which outlines the circumstances in which a protected action ballot order may be granted. Specifically, the Union needed to demonstrate that it had been genuinely trying to reach an agreement with the Respondent and that there was a notification time in relation to the proposed agreement. The Union submitted a declaration from Mr Godfrey Moase, who attested to the steps taken by the Union in bargaining with the Respondent and its genuine efforts to reach an agreement.

The Deputy President was satisfied that the Union had met the requirements of section 443(1) of the Fair Work Act 2009, based on the material before them. The Union had provided evidence of its efforts to reach an agreement with the Respondent, and the Respondent did not object to the application. As such, the Deputy President determined that an order should be made in favour of the Union. A separate order was issued in PR742166.

In conclusion, the Fair Work Commission granted the Union's application for a protected action ballot order, finding that the Union had met the requirements of section 443(1) of the Fair Work Act 2009. The Deputy President determined the matter on the papers without holding a hearing, as the Respondent did not object to the application. This decision allows the Union to proceed with a ballot of its members on the possibility of protected action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established