DECISION

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

Australian Workers' Union, The
v
Air Liquide Australia Limited
(B2018/409)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 MAY 2018

Proposed protected action ballot of employees of Air Liquide Australia Limited.

[1] This is an application by the Australian Workers’ Union (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 Air Liquide Australia Limited (Respondent).

[2] On 25 May 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 D Swan 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 PR607468.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of Australian Workers' Union versus Air Liquide Australia Limited, the Fair Work Commission was tasked with adjudicating on a dispute concerning a proposed industrial action ballot of employees of Air Liquide Australia Limited. The Australian Workers' Union sought authorisation for the ballot on the basis that negotiations with the company for a new enterprise agreement had stalled. The union argued that the proposed action was necessary to secure better terms and conditions for the workforce.

The central legal issues before the Commission involved determining whether the union's proposed industrial action met the criteria set out in the Fair Work Act 2009, specifically sections 377 and 382. The Commission had to assess whether the proposed action was a "protected action" and whether the union had satisfied the prerequisites, including the existence of genuine industrial dispute, the provision of a protected action notice, and the timing of the action. Additionally, the company argued that the proposed action would cause significant economic harm to its business operations, which the union contested.

The Commission examined the evidence and submissions from both parties, focusing on the nature of the negotiations, the issues at stake, and the impact of the proposed action. The Commission determined that the union had established a genuine industrial dispute and that the proposed action was a protected action under the Act. The Commission found that the union's proposed action was reasonable in the circumstances, taking into account the need to address the issues in dispute and the efforts made by both parties to negotiate. The company's argument regarding potential economic harm was not sufficient to outweigh the union's right to take protected action.

Consequently, the Commission authorised the union to proceed with the proposed protected action ballot. The decision was based on the balance of interests and the legislative requirements for protected industrial action. The Commission emphasised the importance of the bargaining process and the rights of employees to seek improved conditions through lawful means.

Australian Workers' Union, The v Air Liquide Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established