United Workers' Union v Sun Pharmaceutical Industries (Australia) Pty Ltd Summary

[2022] FWC 783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

Sun Pharmaceutical Industries (Australia) Pty Ltd

(B2022/283)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 APRIL 2022

Proposed protected action ballot of employees of Sun Pharmaceutical Industries (Australia Pty Ltd).

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 Sun Pharmaceutical Industries (Australia) Pty Ltd (the Respondent).

On 7 April 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Ms Belinda Jacobi 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.

An order has been separately issued in PR740127.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the United Workers' Union, acting on behalf of its members, and Sun Pharmaceutical Industries (Australia) Pty Ltd. The Union sought to organise a protected action ballot among certain employees of the pharmaceutical company, as permitted under section 437 of the Fair Work Act 2009. This request was made to formalise the employees' intent to engage in protected industrial action if a satisfactory agreement could not be reached through bargaining.

The legal issues at hand primarily concerned whether the Union had met the statutory requirements to proceed with the ballot. This involved verifying that the Union had genuinely attempted to negotiate with the employer, and that a notification period had elapsed. The Commission also needed to ensure that the provisions of section 443(1) of the Act were satisfied, which outlines the conditions under which a ballot may be conducted.

The Deputy President, Clancy, examined the documentation provided by the Union, including a declaration by Ms Belinda Jacobi, which detailed the bargaining process and the Union's efforts to reach an agreement with the employer. The employer did not object to the Union's application, which facilitated the decision-making process. Given the absence of objections and the evidence of genuine bargaining efforts, the Deputy President determined that the statutory prerequisites for a ballot were fulfilled. Consequently, the application was approved, and a separate order was issued, allowing the Union to proceed with the ballot as planned.

No further orders were specified beyond the approval of the ballot, as the primary objective of the Union's application was achieved. The decision underscores the importance of adherence to statutory processes when unions seek to organise protected action and highlights the role of the Commission in overseeing these processes to ensure compliance with the Fair Work Act.

United Workers' Union v Sun Pharmaceutical Industries (Australia) Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established