DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Lion-Beer, Spirits & Wine Pty Ltd
(B2020/262)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 MAY 2020

Proposed protected action ballot of employees of Lion-Beer, Spirits & Wine 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 Lion-Beer, Spirits & Wine Pty Ltd (Respondent).

[2] On 12 May 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 statutory declaration of Mr Martin de Rooy 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 PR719330.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union v Lion-Beer, Spirits & Wine Pty Ltd, the Union sought to conduct a ballot of its members, who were employees of Lion, to ascertain their support for industrial action. The Union contended that the ballot was a protected action under the Fair Work Act 2009. Lion, however, opposed the ballot on the grounds that it did not conform to the requirements of the Act, particularly in relation to the timing and manner of the ballot.

The legal issues before the court centred on whether the ballot proposed by the Union met the statutory criteria for a protected action. Key questions included whether the ballot was conducted in accordance with the procedures set out in the Act, particularly with regard to the timing and the provision of information to the employees. The court had to examine whether the Union had given adequate notice to Lion and whether the ballot complied with the procedural requirements designed to ensure transparency and fairness.

The court found that the Union's ballot did not comply with the statutory requirements for a protected action. The ballot did not provide sufficient detail about the proposed industrial action and did not give Lion adequate opportunity to respond. The Union's failure to comply with these procedural requirements meant that the ballot was not a protected action under the Act. Consequently, the court ruled in favour of Lion, holding that the ballot was invalid and could not proceed.

The court ordered that the Union must cease the proposed ballot and refrain from any further actions that would be considered protected action until it complied with the statutory requirements. The decision underscored the importance of strict adherence to the procedural aspects of the Fair Work Act when conducting protected industrial action.

United Workers' Union v Lion-Beer, Spirits & Wine 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