United Workers' Union v The Trustee for the Bogicevic Family Trust T/A Coolibah Herbs Summary

[2022] FWC 543

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

United Workers’ Union
v

The Trustee for the Bogicevic Family Trust T/A Coolibah Herbs

(B2022/190)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 MARCH 2022

Proposed protected action ballot of employees of The Trustee for the Bogicevic Family Trust T/A Coolibah Herbs.

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 the Bogicevic Family Trust T/A Coolibah Herbs (the Respondent).

On 10 March 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 Sokchea Saing 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 PR739223.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union applied to the Fair Work Commission (FWC) for a protected action ballot order in relation to certain employees of The Trustee for the Bogicevic Family Trust, trading as Coolibah Herbs. The application was made under section 437 of the Fair Work Act 2009. The dispute involved a proposed ballot of employees regarding protected action, likely related to industrial action such as a strike or lockout. The FWC Deputy President Clancy heard the matter in Melbourne on 11 March 2022, deciding to determine the matter based on the papers submitted, as the respondent did not object to the application.

The central legal issue before the court was whether the union had fulfilled the necessary conditions to hold a protected action ballot, specifically under section 443(1) of the Fair Work Act 2009. The union needed to demonstrate that it had genuinely attempted to reach an agreement with the employer and that a notification period was appropriate. The declaration provided by Sokchea Saing of the United Workers' Union, outlining the bargaining efforts and genuine attempts to reach an agreement, was crucial in this assessment.

The FWC Deputy President concluded that the union had met the necessary requirements. The evidence provided indicated that the union had genuinely tried to reach an agreement with the employer and that a notification period was appropriate for the proposed agreement. Consequently, the application for a protected action ballot order was granted. A separate order was issued, referenced as PR739223.

No further orders were specified beyond the granting of the protected action ballot order. The decision was based on the material submitted and the absence of objections from the employer. The court's decision ensured that the union could proceed with the ballot, provided all legal conditions were satisfied.

United Workers' Union v The Trustee for the Bogicevic Family Trust T/A Coolibah Herbs

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established