United Workers' Union v ITW Australia Pty Ltd T/A ITW Proline Summary

[2022] FWC 3296

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

ITW Australia Pty Ltd T/A ITW Proline

(B2022/1834)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 14 DECEMBER 2022

Proposed protected action ballot of employees of ITW Australia Pty Ltd T/A ITW Proline.

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 ITW Australia Pty Ltd T/A ITW Proline (Respondent).

On 14 December 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 Jasdev Kang 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 PR748923.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the United Workers' Union under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for employees of ITW Australia Pty Ltd T/A ITW Proline. The union aimed to conduct a ballot for proposed protected action due to difficulties in reaching an agreement with the employer. The employer did not object to the application, allowing the Deputy President to determine the matter on the basis of the provided documents without holding a hearing.

The primary legal issue the Deputy President had to address was whether the conditions under section 443(1) of the Act had been satisfied, which are necessary prerequisites for a protected action ballot. Specifically, the Deputy President needed to ascertain if there was a notification time in relation to the proposed agreement and whether the union had genuinely attempted to negotiate with the employer. The declaration of Jasdev Kang from the union, which outlined the bargaining steps taken and the union's genuine efforts to reach an agreement, formed the basis of the evaluation.

In evaluating the application, the Deputy President found that the union had indeed fulfilled the requirements set forth in section 443(1) of the Act. The declaration provided by Jasdev Kang demonstrated that the union had engaged in good faith negotiations and had adhered to the procedural steps necessary for the ballot. Consequently, the Deputy President concluded that the notification time was valid, and the union's application met the statutory criteria.

An order was issued in the matter, separate from the main proceedings, confirming the union's right to proceed with the ballot as requested. This decision ensures that the union can continue with its efforts to secure a fair agreement for the employees, as per the provisions of the Fair Work Act.

United Workers' Union v ITW Australia Pty Ltd T/A ITW Proline

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established