DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
PMFresh Pty Ltd
(B2020/463)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 AUGUST 2020

Proposed protected action ballot of employees of PMFresh 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 PMFresh 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 PR722171.

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 PMFresh Pty Ltd's employees was protected action under the Fair Work Act 2009. The dispute arose as the union wished to conduct a ballot to determine whether the employees wished to take industrial action in relation to enterprise agreement negotiations. PMFresh Pty Ltd opposed the application, arguing the ballot was not protected action because it did not relate to an industrial dispute. The case was heard in the Federal Circuit Court of Australia.

The central issue before the court was whether the proposed ballot constituted protected action under section 356 of the Fair Work Act 2009. This required the court to determine whether the ballot related to an industrial dispute. The union argued that the ballot related to a dispute over the terms of an enterprise agreement, which is a dispute to which section 356 applies. PMFresh Pty Ltd contended that the ballot did not relate to a dispute as there was no impasse in negotiations, and thus no industrial dispute existed.

The court found that the proposed ballot did constitute protected action as it related to an industrial dispute within the meaning of section 356 of the Fair Work Act 2009. The court held that a dispute over the terms of an enterprise agreement was an industrial dispute for the purposes of the Act, and that the mere existence of negotiations did not preclude the existence of a dispute. The court also noted that the fact that the parties had not reached an agreement was not determinative of whether a dispute existed, as there could still be a dispute over the terms being negotiated. The court granted the union's application and declared that the proposed ballot was protected action.

PMFresh Pty Ltd was ordered to permit the union to conduct the proposed ballot of its employees. The court emphasised that the decision was limited to the question of whether the proposed ballot was protected action and did not determine the merits of the dispute over the enterprise agreement. The union was also ordered to pay PMFresh Pty Ltd's costs of the proceeding.

United Workers' Union v PMFresh 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