United Workers' Union v Linfox Australia Pty Ltd

[2022] FWC 1674

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Linfox Australia Pty Ltd

(B2022/617)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 JUNE 2022

Proposed protected action ballot of employees of Linfox Australia Pty Ltd.

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 Linfox Australia Pty Ltd (the Respondent).

The Respondent initially advised my Chambers that it did not object to the protected action ballot order being made. However, it raised a concern in relation to the form and content of the order, specifically the industrial action identified in questions 3 and 4 of the proposed order. The Respondent also sought an extension of the notice period required for the taking of industrial action from 3 working days to 7 working days (subject to the Commission being satisfied it is appropriate to extend the notice period). I determined a Mention should be conducted, during which I discussed the above matters with the parties and others subsequently raised.

During the Mention, the Applicant consented to an extension of the notice period required for the taking of industrial action from 3 working days to 7 working days and the Respondent withdrew its objection with respect to the industrial action identified in questions 3 and 4 of the proposed order.

With the Mention having resolved the various matters raised by the parties, I have proceeded to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Ian William Madgwick 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 PR743194.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the United Workers' Union, seeking an order for a protected action ballot of employees of Linfox Australia Pty Ltd. The Union, under section 437 of the Fair Work Act 2009, aimed to conduct the ballot to allow its members to vote on proposed industrial action. Linfox initially did not object to the ballot but raised concerns about the form and content of the order, specifically questions 3 and 4 of the proposed ballot. Additionally, Linfox sought an extension of the notice period required for industrial action from three working days to seven working days.

During the mention, the Union agreed to extend the notice period, and Linfox withdrew its objection regarding questions 3 and 4. With all issues resolved, the Deputy President determined the matter without a hearing, considering the material provided, including the declaration of Mr Ian William Madgwick of the Union. The declaration detailed the steps taken by the Union in bargaining with Linfox and affirmed the Union's genuine efforts to reach an agreement. The Deputy President concluded that there was a notification time in relation to the proposed agreement and that the requirements of section 443(1) of the Act had been met.

The Commission issued an order permitting the ballot, as requested by the Union. Separately, an order was issued in PR743194. The Union can now proceed with the ballot, subject to the terms of the order, including the extended notice period for any resulting industrial action. This decision reinforces the importance of bargaining in good faith and the procedural requirements for protected action ballots under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established