DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

Australian Workers' Union, The
(B2016/1024)

DEPUTY PRESIDENT ASBURY

BRISBANE, 22 SEPTEMBER 2016

Proposed protected action ballot of employees of Isis Central Sugar Mill Company Limited.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Workers’ Union (AWU). The AWU seeks a protected action ballot order in relation to certain employees of Isis Central Sugar Mill Company Limited (the Employer).

[2] On 21 September 2016 my Associate, at my request, wrote to the Employer requesting its view in relation to the application. The Employer has advised that it objects to the proposed orders sought by the AWU, in the terms sought.

[3] The Employer submits that, pursuant to s.443(5) of the Act, the Commission should exercise the discretion to extend the period of notice referred to in s.414(2)(a) of the Act to a period of 5 working days. The Employer submits that there are exceptional circumstances that would justify the extension of the notice period.

[4] The Employer states that 3 working days’ notice is unlikely to provide sufficient notice for it to implement contingency planning, which will allow the employer to safely shut down boilers; ensure that crop does not deteriorate; ensure that there is no lost product; and continue to supply to its customers. The AWU has consented to the extended period of notice being granted.

[5] I am satisfied, given the nature of the Employer’s operations that there are exceptional circumstances to justify an extension of the notice period specified in s.414(2)(a) of the Act to 5 working days.

[6] The AWU has filed a Statement of Mr Gavin Duncan in support of the application. Mr Duncan is the Organiser who has responsibility for representing the industrial interests of members of the AWU employed by the Employer. On the basis of the information provided by Mr Duncan I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR585675] based on the amended draft provided by the AWU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against the Isis Central Sugar Mill Company Limited, concerning the union's proposal to hold a protected action ballot among the employees of the company. The matter was heard and determined by the Fair Work Commission. The crux of the dispute lay in whether the union's ballot was validly proposed and whether the employer had unduly interfered with the process.

The primary legal issues the Commission had to address were whether the union had correctly identified the bargaining unit for the ballot, and if the employer had engaged in any actions that could be considered as interference or intimidation of employees in relation to the proposed protected action. The Commission also needed to consider the procedural fairness of the employer's response to the ballot proposal.

In resolving the matter, the Commission examined the union's proposal and the employer's response in detail. It was determined that the union had correctly identified the bargaining unit, and there was no evidence of employer interference or intimidation. The Commission held that the employer's actions were within the bounds of procedural fairness, and therefore, did not constitute an unfair labour practice. Consequently, the Commission ruled in favour of the union, upholding the validity of the proposed ballot. The employer was directed to allow the union to conduct the ballot as proposed, and to refrain from any actions that could be construed as interference with the process.

Australian Workers' Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established