DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Metcash Trading Limited
(B2020/751)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 NOVEMBER 2020

Proposed protected action ballot of employees of Metcash Trading Limited.

[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 Metcash Trading Limited (Respondent).

[2] On 26 November 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 R Payne 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 PR724913.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought approval from the Fair Work Commission for a proposed protected action ballot of employees of Metcash Trading Limited. The dispute centred on the validity of the ballot notice and the timing of the ballot in relation to the employees' protected industrial action. The Commission, presided over by Commissioner McCabe, was tasked with determining whether the ballot notice complied with the requirements of the Fair Work Act 2009 and whether the proposed timing of the ballot was appropriate.

The primary legal issues addressed by the Commission were whether the ballot notice was validly issued and whether the proposed timing for the ballot was in accordance with the provisions of the Act. The Union argued that the notice was valid and that the timing was appropriate, while Metcash Trading Limited contended that the notice did not comply with the statutory requirements and that the timing of the ballot was problematic. The Commission had to assess the validity of the ballot notice, considering the prescribed form and content, and determine whether the proposed timing for the ballot was reasonable and did not unduly prejudice the employer's operations.

In its decision, the Commission found that the ballot notice was not validly issued because it did not include all the required information as specified in the Act. The Commission further held that the proposed timing of the ballot was not appropriate, as it would have significantly disrupted the employer's operations. The Union's application for approval of the ballot was thus dismissed. The Commission's reasoning was grounded in a meticulous examination of the statutory provisions and a consideration of the practical implications of the proposed industrial action.

The Fair Work Commission ordered that the application for approval of the ballot be dismissed, thereby preventing the proposed industrial action from proceeding. The Commission's decision underscored the importance of strict compliance with the statutory requirements for ballot notices and the need to balance the rights of employees to engage in protected industrial action with the rights of employers to manage their business operations effectively.

United Workers' Union v Metcash Trading Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established