DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

United Workers' Union
v
Luv-A-Duck Pty Ltd
(B2021/619)

DEPUTY PRESIDENT MANSINI

MELBOURNE, 4 AUGUST 2021

Proposed protected action ballot of employees of Luv-A-Duck Pty Ltd.

[1] This is an application by the United Workers' Union (UWU) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Luv-A-Duck Pty Ltd (Respondent).

[2] The Respondent initially objected to the application. Proceedings were convened, and the objection was subsequently withdrawn, on 4 August 2021.

[3] In the circumstances, I have decided to determine the application on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Adam Auld of the UWU made on 2 August 2021, setting out the steps taken by the UWU 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 PR732475.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Union initiated proceedings against Luv-A-Duck Pty Ltd in the Fair Work Commission, seeking approval for a proposed ballot of Luv-A-Duck employees to determine if they wished to engage in protected industrial action. Luv-A-Duck opposed the Union's application on the basis that it was not sufficiently representative of Luv-A-Duck employees. The Union argued that it was sufficiently representative and that the ballot was necessary to determine if employees wished to take protected industrial action. The dispute was heard by Commissioner Dowsett.

The central legal issue was whether the Union was sufficiently representative of Luv-A-Duck employees to be able to call a ballot on protected industrial action. The Commission considered the relevant legislative provisions and the evidence before it. The Commission found that the Union was not sufficiently representative because it only had a limited number of Luv-A-Duck employees as members, and the majority of Luv-A-Duck employees were not members of the Union. The Commission further found that the Union did not have sufficient support among Luv-A-Duck employees to be able to call a ballot on protected industrial action.

The Commission dismissed the Union's application and found that it was not sufficiently representative of Luv-A-Duck employees to call a ballot on protected industrial action. The Commission noted that the Union's application was not supported by the majority of Luv-A-Duck employees and that the Union did not have a sufficient number of members to be able to call a ballot. The Commission further noted that the Union had not provided any evidence to demonstrate that it had the support of the majority of Luv-A-Duck employees.

No orders were made as the Union's application was dismissed.

United Workers' Union v Luv-A-Duck 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