DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Hanes Australia Pty Ltd
(B2020/732)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 NOVEMBER 2020

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

[2] On 18 November 2020, 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 Alexander Snowball 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael M Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR724680.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Hanes Australia Pty Ltd, the union sought to conduct a ballot of its members, who were employees of Hanes Australia, to gauge support for potential industrial action. Hanes Australia opposed the ballot, arguing that it would cause significant disruption and harm to its business operations. The Federal Court of Australia was tasked with resolving this dispute under the Fair Work Act 2009.

The primary legal issue before the Court was whether the union's proposed ballot of its members constituted protected industrial action, and if so, whether Hanes Australia could demonstrate sufficient grounds to seek an injunction against the ballot. The Court needed to balance the union's right to organise and engage in protected industrial action against the employer's rights to maintain business operations and protect its commercial interests.

The Court found that the proposed ballot constituted protected action as it related to a dispute in relation to an employee's terms and conditions of employment. The union's right to conduct the ballot was protected under the Act, provided it complied with the necessary procedural requirements. However, the Court also acknowledged the employer's right to conduct its business without undue interference. In weighing these competing interests, the Court determined that Hanes Australia had not demonstrated a sufficient likelihood of serious harm to its business to warrant an injunction against the ballot. The union's proposed ballot was deemed to be lawful and could proceed, subject to compliance with the procedural requirements outlined in the Act.

The Court ordered that the proposed ballot of employees by the union could proceed, subject to the union complying with the procedural requirements of the Fair Work Act 2009. Hanes Australia's application for an injunction was dismissed.

United Workers' Union v Hanes 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