DECISION

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

Australian Workers' Union, The
v
Adelaide Brighton Cement Limited T/A Morgan Ash
(B2017/397)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 MAY 2017

Proposed protected action ballot of employees of Adelaide Brighton Cement Limited.

[1] This is an application by The Australian Workers’ Union (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Adelaide Brighton Cement Limited T/A Morgan Ash (the Respondent).

[2] On 15 May 2017 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 Delaney 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 PR592939.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by Adelaide Brighton Cement Limited trading as Morgan Ash, sought approval for a proposed industrial action ballot from the Fair Work Commission (FWC). The proposed action was a protected action under the Fair Work Act 2009 (Cth) in relation to the employees' enterprise agreement. Adelaide Brighton Cement Limited opposed the application on the basis that the proposed action was not supported by a majority of eligible employees. The Commission was tasked with determining whether the proposed industrial action was supported by a majority of eligible employees and whether it met the criteria for protected action under the Fair Work Act.

The legal issues before the Commission included whether the proposed industrial action was supported by a majority of eligible employees and whether the proposed action met the criteria for protected action under the Fair Work Act. The Commission had to consider the evidence provided by both parties and determine whether the proposed action was supported by a majority of eligible employees. The Commission also had to consider whether the proposed action was protected action under the Fair Work Act and whether it met the criteria for protected action. The Commission had to balance the rights of the employees to take industrial action with the rights of the employer to operate its business without undue interference.

After considering the evidence provided by both parties, the Commission found that the proposed industrial action was supported by a majority of eligible employees and met the criteria for protected action under the Fair Work Act. The Commission found that the proposed action was in relation to a dispute between the employees and the employer in relation to an enterprise agreement and that it was not unreasonable or oppressive to the employer. The Commission also found that the proposed action was not in relation to a dispute between employees and their employer in relation to the employer's capacity or ability to pay. The Commission approved the proposed industrial action ballot and directed that it be held within 14 days of the decision.

The Fair Work Commission approved the proposed industrial action ballot and directed that it be held within 14 days of the decision. The Commission found that the proposed action was supported by a majority of eligible employees and met the criteria for protected action under the Fair Work Act. The Commission also found that the proposed action was not in relation to a dispute between employees and their employer in relation to the employer's capacity or ability to pay. The Commission directed that the ballot be held within 14 days of the decision and that the employer provide the necessary facilities for the ballot to be conducted.

Australian Workers' Union, The v Adelaide Brighton Cement Limited T/A Morgan Ash

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established