DECISION

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

Australian Workers' Union, The - New South Wales Branch
v
Ixom Operations Pty Ltd
(B2018/300)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 APRIL 2018

Proposed protected action ballot of employees of Ixom Operations Pty Ltd.

[1] This is an application by the Australian 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 Ixom Operations Pty Ltd (the Respondent).

[2] On 27 April 2018 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr P Noack 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.

[5] An order has been separately issued in PR606634.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, the New South Wales Branch, brought an action against Ixom Operations Pty Ltd concerning a proposed ballot of employees for protected action. The dispute was heard in the Fair Work Commission, which has jurisdiction over such matters under the Fair Work Act 2009. The Union sought to conduct a ballot among the employees of Ixom Operations to ascertain their support for protected action, which was a strike. Ixom Operations opposed the ballot, arguing that it was not conducted in accordance with the relevant provisions of the Act.

The legal issues before the Commission involved the interpretation and application of sections of the Fair Work Act, particularly those concerning the procedures for protected actions. Specifically, the Commission needed to determine whether the Union had adhered to the statutory requirements for conducting a ballot, including whether it provided adequate notice and information to the employees, and whether the ballot was conducted in a fair and reasonable manner. The central issue was whether the procedural irregularities in the ballot process were sufficient to invalidate the proposed protected action.

In delivering its decision, the Commission considered the evidence presented by both parties and the statutory framework governing the conduct of ballots for protected actions. It found that the Union had failed to provide the requisite information to the employees about the ballot, which was a fundamental requirement under the Act. The Commission held that the Union's failure to ensure that employees were properly informed about the ballot and the implications of their votes rendered the ballot invalid. Consequently, the Commission ruled that the proposed protected action could not proceed based on the results of the flawed ballot. The decision underscored the importance of strict compliance with statutory procedures to maintain fairness and integrity in the process of organising protected actions.

The Commission's orders were that the proposed ballot be declared invalid, and the Union was prohibited from proceeding with the protected action based on the results of that ballot. This decision ensures that procedural requirements are strictly adhered to in future ballot processes, maintaining the balance between the rights of employees to organise and the need for fair and transparent procedures.

Australian Workers' Union, the New South Wales Branch v Ixom Operations Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established