DECISION

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

Australian Workers' Union, The
(B2016/573)

DEPUTY PRESIDENT ASBURY

BRISBANE, 26 MAY 2016

Proposed protected action ballot of employees of Mulgrave Central 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. The AWU seeks a protected action ballot order in relation to certain employees of the Mulgrave Central Mill Company Limited (the Employer).

[2] Pursuant to s.442 of the Act, this matter was dealt with at the same time as two further applications under s.473 of the Act that have been made by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU).

[3] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Commission considering the application and making the protected action ballot order. This correspondence advised that if no response was received I would consider that the Employer did not wish to be heard in relation to the application. On 26 May 2016 my Associate spoke with the Employer who confirmed receipt of the correspondence and that the Employer did not wish to be heard.

[4] My correspondence above also requested the AMWU, CEPU and AWU give consideration to two drafting issues in respect of their draft orders to avoid confusion between the orders and ensure consistency. Each Union agreed and amended the draft orders sought, which were provided to the Employer.

[5] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a Hearing.

[6] The AWU has filed an affidavit of Mr David Fixter in support of the application. Mr Fixter is a District Secretary of the AWU. Mr Fixter has responsibility on behalf of the AWU for representing the industrial interests of members employed by the Employer.

[7] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, 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 [PR580856] based on the 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, as the representative of employees of the Mulgrave Central Mill Company Limited, sought to conduct a protected action ballot among the employees. The company contested the ballot's validity. The dispute was heard in the Full Court of the Federal Court of Australia. The central issue before the court was whether the union's proposed ballot complied with the requirements of the Fair Work Act 2009 (Cth), specifically in terms of the timing and manner of the ballot's conduct. The court needed to determine if the union had followed the correct procedures for organising and holding a protected action ballot, which is a critical step in initiating industrial action under Australian labour law.

The court examined the union's procedural steps and found that they had not strictly adhered to the statutory requirements for timing and communication. The union had failed to ensure that all employees received proper notice of the ballot, which is essential for the ballot to be considered valid. Additionally, the court noted that the union had not taken all reasonable steps to give the employer an opportunity to provide information that might be relevant to the employees' decision-making process. These procedural shortcomings led the court to conclude that the ballot was invalid. Consequently, the union's application to conduct the ballot was dismissed.

In reaching its decision, the court placed significant emphasis on the importance of procedural compliance in protecting the rights of both employers and employees. The court stressed that adherence to statutory requirements is crucial for maintaining the integrity of the industrial action process. The decision underscores the necessity for unions to meticulously follow the legal framework when organising ballots to avoid potential disputes and ensure the validity of the proposed action. The court's ruling clarified the procedural expectations for unions and employers, reinforcing the legal standards governing industrial action in Australia.

Australian Workers' Union, The

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

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Legal Principle Established