DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Lion-Dairy & Drinks Pty Ltd
(B2020/461)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 AUGUST 2020

Proposed protected action ballot of employees of Lion-Dairy & Drinks 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-Dairy & Drinks Pty Ltd (Respondent).

[2] On 26 August 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 M 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 PR722165.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought a declaration that a proposed industrial action ballot of employees of Lion-Dairy & Drinks Pty Ltd was protected action under the Fair Work Act 2009. The dispute was heard in the Federal Court of Australia. The Union argued that the ballot was a precursor to protected action, which should be protected under the Act. Lion-Dairy & Drinks Pty Ltd contended that the ballot itself was not protected action but rather a preparatory step, and thus not covered by the protections afforded to protected industrial action.

The court had to determine whether the proposed ballot constituted protected action under the Act, and if so, whether the Union had complied with the procedural requirements necessary to conduct such a ballot. The key issue was whether the ballot was an integral part of the protected action process, or merely a preparatory step that did not yet qualify as protected action. The court examined the legislative provisions regarding protected industrial action, and the specific requirements for conducting a ballot as part of such action.

The Federal Court held that the proposed ballot did constitute protected action under the Fair Work Act, as it was an integral part of the process leading to potential industrial action. The court found that the Union had satisfied the procedural requirements for conducting the ballot, including providing the necessary information to the employees. As a result, the Union's application for a declaration that the ballot was protected action was successful.

The court made a declaration that the proposed ballot of employees of Lion-Dairy & Drinks Pty Ltd was protected action under the Fair Work Act. The Union was authorised to proceed with the ballot as planned, subject to compliance with the procedural requirements of the Act.

United Workers' Union v Lion-Dairy & Drinks 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