United Workers' Union v The Trustee for a & R Kohn Family Trust T/A Andrew Kohn Pty Ltd

[2022] FWC 769

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

The Trustee for A & R Kohn Family Trust T/A Andrew Kohn Pty Ltd

(B2022/273)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 APRIL 2022

Proposed protected action ballot of employees of The Trustee for A & R Kohn Family Trust T/A Andrew Kohn 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 The Trustee for A & R Kohn Family Trust T/A Andrew Kohn Pty Ltd (the Respondent).

On 6 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 Mr Steve Howie 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 PR740075.

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 certain employees of The Trustee for A & R Kohn Family Trust T/A Andrew Kohn Pty Ltd, seeking a protected action ballot order under section 437 of the Fair Work Act 2009. The dispute centred on the union's application to hold a ballot to authorise protected action, presumably in the form of a strike, as part of ongoing negotiations with the employer regarding an agreement. The employer, represented by the trustee, did not object to the union's application, leading to the matter being decided on the submitted documentation without the need for a formal hearing.

The central legal issue the Deputy President had to address was whether the union had met the statutory requirements to hold a protected action ballot. This included verifying if there was a notification period for the proposed agreement and if the union had genuinely attempted to reach an agreement with the employer. The Deputy President needed to consider the evidence provided, including a declaration from Mr. Steve Howie of the United Workers' Union, detailing the union's bargaining efforts and its assertion of genuine attempts to negotiate with the employer.

After reviewing the materials submitted, including Mr. Howie's declaration which outlined the union's bargaining steps and its genuine negotiation efforts, the Deputy President was satisfied that the notification period for the proposed agreement had been met and that the union had indeed been genuinely attempting to reach an agreement. Consequently, the Deputy President concluded that the union had fulfilled the requirements to hold a protected action ballot.

The Deputy President issued an order allowing the United Workers' Union to proceed with the ballot for protected action. This decision was made without a hearing due to the employer's lack of objection. Additionally, a separate order was issued in PR740075, although the specifics of this order are not detailed in the excerpt. The outcome effectively permits the union to take steps towards organising the employees to engage in protected action, subject to the outcomes of the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established