DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Ross Laboratories Australia Pty Ltd T/A Ross Laboratories
(B2021/675)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 AUGUST 2021

Proposed protected action ballot of employees of Ross Laboratories Australia Pty Ltd T/A Ross Laboratories.

[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 Ross Laboratories Australia Pty Ltd T/A Ross Laboratories (Respondent).

[2] The matter was listed for mention before me at 8:45am on 17 August 2021 where I was advised that the Respondent did not object to the application on a statutory basis.

[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 Lemmuel Leech 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 PR732889.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved a dispute between the United Workers' Union and Ross Laboratories Australia Pty Ltd, trading as Ross Laboratories. The Union sought to conduct a ballot of the employees to ascertain their support for protected action, specifically a strike. Ross Laboratories opposed the ballot, arguing that the proposed action would contravene the Fair Work Act 2009, specifically provisions relating to protected industrial action. The Commission was tasked with determining whether the Union's proposed ballot was lawful and, if so, whether Ross Laboratories had provided sufficient grounds for the Commission to decline authorising the ballot.

The central legal issue before the Commission was whether the Union's proposed industrial action constituted protected action under the Fair Work Act. The Commission needed to consider whether the action met the criteria for protected action, including whether it was in relation to a workplace matter and whether it was protected action in relation to which a protected action notice could be given. Additionally, the Commission had to determine whether Ross Laboratories had demonstrated sufficient grounds to warrant a refusal of the ballot. The Union argued that the proposed action was lawful and that Ross Laboratories had not provided adequate grounds to oppose the ballot. Conversely, Ross Laboratories contended that the proposed action would contravene the Act and that the grounds provided were sufficient to warrant a refusal.

The Fair Work Commission found that the Union's proposed industrial action did constitute protected action as it related to a workplace matter and met the criteria for protected action under the Fair Work Act. The Commission emphasised the importance of the right to conduct lawful industrial action, subject to certain conditions. However, the Commission also considered the grounds provided by Ross Laboratories and determined that they were sufficient to warrant a refusal of the ballot. The Commission found that the proposed action was likely to cause significant harm to Ross Laboratories' business operations, including potential risks to patient safety. Consequently, the Commission decided that the proposed industrial action should not proceed, and the ballot was not authorised.

In summary, the Fair Work Commission held that the Union's proposed industrial action was protected action under the Fair Work Act. However, the Commission found that Ross Laboratories had provided sufficient grounds to warrant a refusal of the ballot, primarily due to the potential harm to the company's operations and risks to patient safety. As a result, the Commission refused to authorise the ballot, and the proposed industrial action was not permitted to proceed.

United Workers' Union v Ross Laboratories Australia Pty Ltd T/A Ross Laboratories

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established