DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
L’Oreal Australia Pty Ltd T/A L’Oreal
(B2021/25)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 JANUARY 2021

Proposed protected action ballot of employees of L’Oreal 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 L’Oreal Australia Pty Ltd (Respondent).

[2] On 21 January 2021, 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 Mr Mick Power 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 PR726347.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union, acting on behalf of its members who are employees of L'Oreal Australia Pty Ltd trading as L'Oreal, sought approval for a proposed protected action ballot under the Fair Work Act 2009. The company opposed the ballot, leading to the case being heard by the Fair Work Commission. The dispute centred around the eligibility of the employees to conduct a protected action ballot and whether the union had properly followed the procedures outlined in the Fair Work Act.

The primary legal issue before the Commission was whether the union had correctly identified the bargaining agents and whether the ballot notice was appropriately drafted to meet the statutory requirements. The Commission had to consider the definitions and procedural requirements under the Fair Work Act, including the role and responsibilities of bargaining agents and the content of the ballot notice. Additionally, the Commission needed to determine if the union had acted in accordance with the procedural fairness principles in scheduling and conducting the ballot.

The Fair Work Commission concluded that the union had correctly identified the bargaining agents and had followed the necessary procedures for a protected action ballot. The Commission found that the ballot notice was properly drafted and contained all the required information. Consequently, the application for approval of the protected action ballot was approved. The Commission's decision was based on the union's adherence to the statutory requirements and procedural fairness principles, ensuring that the employees' rights to organise and take protected action were upheld.

The Fair Work Commission granted approval for the protected action ballot, finding in favour of the union. The company's opposition was dismissed, and the union was permitted to proceed with the ballot as planned, subject to the terms and conditions set out in the Fair Work Act. This decision reinforced the importance of following statutory procedures and the rights of employees to organise and engage in protected industrial action.

United Workers' Union v L'Oreal Australia Pty Ltd T/A L'Oreal

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established