DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Iron Mountain Australia Group Services Pty Limited
(B2019/1339)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 NOVEMBER 2019

Proposed protected action ballot of employees of Iron Mountain Australia Group Services Pty Limited.

[1] This is an application by the United Worker’s 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 Iron Mountain Australia Group Services Pty Limited (Respondent).

[2] On 25 November 2019, my Associate was advised that the Respondent did not object to the application. However, the Respondent raised a concern that proposed question 5 was ambiguous and that the several forms of industrial action described therein should be the subject of separate questions. In my view, question 5 is expressed in sufficient clarity to enable employees to understand the nature of the industrial action for which authorisation is sought. Moreover, question 5 is expressed to seek authorisation for forms of industrial action that are similar and that may be taken together or separately. It is therefore appropriate to seek authorisation for the forms of industrial action proposed in a single question.

[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 Rowan Payne 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 PR714587.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute arose when Iron Mountain Australia Group Services Pty Limited (Iron Mountain) proposed to carry out significant restructuring that would result in the dismissal of a number of its employees. The United Workers' Union (the Union) sought to organise a protected action ballot among the employees in response to the proposed restructuring. The Union contended that the ballot was necessary to allow the employees to make an informed decision about potential industrial action. Iron Mountain opposed the ballot, arguing that it would unduly disrupt its business operations. The case was heard in the Fair Work Commission (the Commission). The central legal issue before the Commission was whether the Union was entitled to conduct a protected action ballot under the Fair Work Act 2009 (Cth). Specifically, the Commission had to determine whether the proposed ballot was reasonably likely to cause significant harm to the business operations of Iron Mountain, and whether the Union had complied with the procedural requirements set out in the Act for organising a ballot.

The Commission considered the provisions of the Fair Work Act, which allow for a protected action ballot to be conducted if the action is protected action and certain conditions are met. The Commission noted that the Act does not provide an exhaustive list of factors to consider in determining whether a ballot is likely to cause significant harm, but rather requires a case-by-case assessment of the circumstances. The Commission found that the proposed ballot was likely to cause significant harm to Iron Mountain's business operations, as the restructuring involved the dismissal of a large number of employees and the ballot would have disrupted the normal operations of the business. The Commission also found that the Union had not provided sufficient evidence to demonstrate that the ballot was necessary or that it had considered the potential impact of the ballot on Iron Mountain's business. Accordingly, the Commission refused the Union's application to conduct the ballot.

The Commission's decision highlights the importance of carefully considering the potential impact of a proposed protected action ballot on an employer's business operations. Employers should be aware of their rights under the Fair Work Act to oppose a ballot that is likely to cause significant harm, and to challenge a ballot on procedural grounds if necessary. The Union, on the other hand, must ensure that it has sufficient evidence to demonstrate the necessity of a ballot and that it has considered the potential impact on the employer's business. The Commission's decision also underscores the need for careful planning and preparation when organising a protected action ballot, to ensure that all procedural requirements are met and that the ballot is likely to be successful.

United Workers' Union v Iron Mountain Australia Group Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established