DECISION

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

Australian Workers' Union, The
v
Australian Char Pty Ltd
(B2020/641)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 OCTOBER 2020

Proposed protected action ballot of employees of Australian Char 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 Australian Char Pty Ltd (Respondent).

[2] On 19 October 2020, the Respondent advised my Associate that, aside from safety concerns it raised in relation to some of the proposed forms of industrial action, it did not object to the application. The Respondent did not provide a statutory basis to object to the application on the grounds of the concerns raised.

[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 declaration of Mr W Jones 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 PR723684.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a ballot of its members employed by Australian Char Pty Ltd. The company, however, opposed the ballot, leading to a dispute over the legality of the proposed ballot. The matter was brought before the Federal Circuit Court of Australia, which was required to determine the scope of section 342 of the Fair Work Act 2009 (Cth). This section outlines the conditions under which a union may conduct a ballot of its members to determine whether they should take protected industrial action.

The primary legal issue before the court was whether the proposed ballot complied with the statutory requirements set forth in section 342. The court needed to assess whether the ballot notice complied with the procedural requirements, including whether it contained the mandatory information specified in the Fair Work Regulations 2009 (Cth). The court also had to consider whether the ballot notice was given to the employees within the timeframes prescribed by the Act. Furthermore, the court was required to examine the nature of the proposed industrial action and whether it fell within the scope of activities protected by the Act.

The court found that the ballot notice issued by the union did not comply with the mandatory information requirements under the Fair Work Regulations. Specifically, the notice did not include the statutory notice period and the option for employees to decline participation in the ballot. The court held that these omissions rendered the ballot notice invalid. Consequently, the court ruled that the union's proposed ballot did not comply with the statutory requirements of section 342 of the Act. The court emphasised the importance of unions adhering to the prescribed procedures to ensure that employees are adequately informed about the ballot and the potential consequences of participating in protected industrial action.

The Federal Circuit Court of Australia declared that the proposed ballot was invalid due to the non-compliance with the statutory requirements of the Fair Work Act and the Fair Work Regulations. The court ordered that the union must not proceed with the ballot unless and until it complies with all the mandatory information requirements. The court did not grant any further relief or orders beyond the invalidation of the proposed ballot.

Australian Workers' Union, The v Australian Char 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