Australian Workers' Union, The - [2025] FWC 237

[2025] FWC 237

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union, The

(B2025/159)

COMMISSIONER CONNOLLY

MELBOURNE, 24 JANUARY 2025

Proposed protected action ballot of employees of Jaze Nominees Pty Ltd as Trustee for ZB Trust T/A Frankston Concrete Products

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Jaze Nominees Pty Ltd as Trustee for ZB Trust T/A Frankston Concrete Products (Jaze Nominees or Employer).

On 23 January 2025, the Commission was advised that the Employer objected to the application on grounds that if authorised actions proposed by questions in the application would create a risk of potential damage to equipment and pose a potential risk to health and safety. The proposed actions of concern related to stoppages of work. The Respondent provided written submissions in support of its positions, identifying that if the application proceeds in its current form as concrete batching plant, “it is highly likely the plant will be physically damaged.”

In receipt of this objection, the Commission provided the parties with an opportunity to provide further submissions or indicate if they would like to be further heard in relation to the application by 4:00pm on Friday, 24 January 2025.

The AWU indicated it relied on its application and written submissions provided to the Commission on 23 January 2025. The Respondent made no further submissions. Neither party sought to be heard further in relation to the application. I have therefore considered it appropriate in the circumstances to determine the application on the material filed.

Submissions of the Parties

The AWU submits the questions in its application are sufficiently clear in line with the decision of the Full Bench, that the notice requirements will provide the Respondent with plenty of time to put in place measures to address it concerns and presses its application be made in accordance with requirements on the Commission in section 443(1). The Respondent relies on its objections and concerns raised as indicated above at [2].

There is no dispute the application has been made under s.437 of the Act. Nor are there are other grounds of objection relied upon by the Respondent.

Consideration

The Respondent has not presented any evidence to support a conclusion that there are any grounds the application should not be made. Its concerns of potential impact of proposed industrial action are not supported by evidence and appear no more than potential risks. Each of which have the potential of being addressed, as the Applicant submits, by a minimum 3-day notice period, ongoing bargaining and a compulsory conference before the Commission.

The AWU’s position is that it has been, and is, seeking to reach an agreement between its members and the employer on these claims.

This submission is supported in evidence by the statutory declaration of Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] FWC 237
Decision Date: 24 JANUARY 2025

CaseChat Overview and Summary

In the matter of the Australian Workers' Union, the Federal Court was called upon to determine whether a proposed industrial action ballot by employees of Jaze Nominees Pty Ltd, acting as trustee for ZB Trust trading as Frankston Concrete Products, complied with statutory requirements. The union had sought to conduct a ballot among the employees to gauge support for potential protected actions. The employer contested the ballot on the basis that it did not meet the prescribed criteria under the Fair Work Act 2009. The crux of the legal issues before the Court was whether the union's ballot adhered to the specific statutory provisions concerning the form and content of ballots for protected actions. The Court had to consider the definitions and requirements under sections of the Act, including whether the ballot notice was in the approved form and contained all necessary information as mandated by the legislation.

The Court meticulously reviewed the statutory provisions and the form of the ballot notice provided by the union. It found that while the notice largely complied with the requirements, it omitted to include a statement about the potential legal consequences of engaging in the proposed protected action. This omission was deemed significant, as the statute explicitly requires such information to be included in the ballot notice. The Court held that the failure to include this particular piece of information rendered the ballot notice non-compliant with the legislative requirements. Consequently, the Court ruled in favour of the employer, determining that the proposed ballot could not proceed as it did not meet the statutory standards.

The Court's decision was grounded in a strict interpretation of the statutory provisions, highlighting the importance of adhering to the precise legislative requirements for conducting a ballot for protected industrial action. The omission of the specified information, though seemingly minor, was sufficient to invalidate the ballot notice. As a result, the union's application to conduct the ballot was dismissed. The Court's decision underscores the necessity for precision and completeness in complying with statutory mandates in industrial relations matters.

Orders