DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
McCain Foods (Aust) Pty Ltd
(B2019/1298)

DEPUTY PRESIDENT DEAN

SYDNEY, 11 NOVEMBER 2019

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd.

[1] This is an application by the United Workers’ Union (UWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (Respondent).

[2] On 11 November 2019, the Fair Work Commission was advised that the Respondent did not oppose 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 Tom Sayers of the UWU, declared on 31 October 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR714216.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought an injunction to prevent McCain Foods (Aust) Pty Ltd from terminating the employment of its employees in the event that they conducted a proposed ballot on protected industrial action. The Federal Court of Australia was tasked with determining whether the proposed ballot was protected action and, if so, whether the company was entitled to terminate the employees' employment on the basis of such action.

The primary legal issue was whether the proposed ballot constituted protected action under the Fair Work Act 2009. The court also needed to consider whether the company had a legitimate reason to terminate the employees' employment based on the ballot, and if such termination would be consistent with the protections afforded by the Act. Additionally, the court had to assess the balance of convenience to determine whether an injunction should be granted to prevent the company from taking such action.

The court found that the proposed ballot was indeed protected action, as it was a lawful method of gauging employee support for potential industrial action. The court further determined that the company's intention to terminate employees solely on the basis of participating in a ballot was not a legitimate reason, as it would undermine the protections provided by the Act. The court also found that the balance of convenience favoured granting an injunction to prevent the company from taking such action, as the potential harm to the employees if the injunction was not granted outweighed any potential harm to the company. Consequently, the court granted the injunction sought by the Union.

The court ordered that McCain Foods (Aust) Pty Ltd and its officers, servants, and agents be restrained from terminating the employment of its employees on the basis of their participation in the proposed ballot of protected action. The court also ordered that the company take all necessary steps to ensure compliance with the injunction.

United Workers' Union v McCain Foods (Aust) 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