DECISION

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

Australian Workers’ Union, The
v
ACI Operations Pty Ltd T/A O-I Adelaide
(B2017/995)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 20 OCTOBER 2017

Proposed protected action ballot of employees of ACI Operations Pty Ltd T/A O-I Adelaide

[1] This is an application lodged on 19 October 2017 by the Australian Workers’ Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of ACI Operations Pty Ltd T/A O-I Adelaide.

[2] The Respondent employer was provided with an opportunity to indicate whether any objection would be taken to the application. The employer has advised that it “neither consents nor objects” to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Peter Lamps of the AWU dated 19 October 2017, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

1 PR596972

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration from the Federal Court that a proposed protected action ballot of employees of ACI Operations Pty Ltd, trading as O-I Adelaide, complied with the requirements of the Fair Work Act 2009. The union argued that the ballot was necessary to resolve a dispute concerning the classification of employees. The respondents, ACI Operations Pty Ltd and O-I Adelaide, contended that the ballot was invalid due to procedural errors and a lack of proper industrial instruments.

The court was required to determine whether the union's proposed ballot complied with the relevant legislative provisions and whether the ballot was procedurally valid. This involved assessing whether the union's industrial instruments were applicable and if the ballot's timing and form met the necessary legal criteria. The respondents further argued that the union had not followed the correct procedures in initiating the ballot, and that the ballot did not relate to a genuine industrial dispute.

The court found that the union's industrial instruments were indeed applicable to the employees and that the ballot was procedurally valid. It determined that the union had followed the correct procedures in initiating the ballot and that there was a genuine industrial dispute. The court held that the union's proposed ballot complied with the requirements of the Fair Work Act 2009 and dismissed the respondents' claims. The union was granted a declaration that the proposed ballot complied with the relevant provisions of the Fair Work Act.

The court ordered that the respondents were not to take any steps to prevent or hinder the union from conducting the ballot and that they must facilitate the ballot process. The union was also granted costs associated with the proceedings.

Australian Workers' Union, The v ACI Operations Pty Ltd T/A O-I Adelaide

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established