DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Lactalis Australia Pty Ltd
(B2020/546)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 SEPTEMBER 2020

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

[2] On 17 September 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 Mr T Czech 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 PR722884.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union, representing employees of Lactalis Australia Pty Ltd, brought an action before the Fair Work Commission seeking to compel the employer to conduct a ballot of its employees in relation to proposed protected industrial action. The dispute centred around the employer's refusal to conduct the ballot, which the union argued was necessary for the employees to exercise their right to take protected action under the Fair Work Act 2009 (Cth). The Commission was tasked with determining whether the employer had valid grounds to refuse the ballot and whether the union had satisfied the statutory requirements for a protected action ballot.

The central legal issues before the Commission were whether Lactalis Australia Pty Ltd had provided valid reasons for refusing the ballot and whether the union had adequately demonstrated the necessity for the proposed protected action. The employer argued that the proposed action was not related to the employees' employment and thus did not qualify as protected action. Additionally, Lactalis Australia contended that the ballot was not necessary as the employees' concerns had already been adequately addressed. The union, on the other hand, asserted that the proposed action was directly related to the employees' terms and conditions of employment and that a ballot was essential to ensure that the employees could lawfully engage in protected action.

The Commission found that the employer had not provided valid reasons for refusing the ballot. It held that the proposed action was related to the employees' employment and, therefore, qualified as protected action. The Commission also determined that the union had satisfied the requirements for a protected action ballot. It concluded that the employer's arguments regarding the adequacy of alternative dispute resolution processes were not sufficient to justify refusal of the ballot. Consequently, the Commission ordered Lactalis Australia Pty Ltd to conduct the ballot within the specified timeframe and in accordance with the Commission's directions.

United Workers' Union v Lactalis 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