DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Australian Char Pty Ltd
(B2021/33)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 JANUARY 2021

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 29 January 2021, my Associate was advised that the Respondent did not object 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 declaration of Mr Warren 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 PR726500.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an application against Australian Char Pty Ltd in the Federal Circuit Court regarding a proposed protected action ballot of the company's employees. The Union sought a declaration that the ballot was lawful, and that the company was required to facilitate it, as well as an order that the company allow the ballot to proceed. The company opposed the application, contending that the ballot was not lawful and that it was not obligated to facilitate it.

The central legal issue before the court was whether the proposed ballot was a lawful protected action under section 174 of the Fair Work Act 2009. The court needed to determine whether the ballot met the statutory criteria for a protected action, including whether it related to a workplace matter, whether it was proposed in good faith, and whether it was a protected action of the employees. Additionally, the court had to consider whether the company was required to facilitate the ballot under section 175 of the Act.

The court found that the proposed ballot was a lawful protected action. The ballot related to a workplace matter, was proposed in good faith, and was a protected action of the employees. The court determined that the company was required to facilitate the ballot and allow it to proceed. The Union's application was thus successful, and the court made the orders it had sought.

The court declared that the proposed ballot was a lawful protected action and that the company was required to facilitate it. The court also ordered that the company allow the ballot to proceed. The company was required to take all reasonable steps to facilitate the ballot, including providing access to the employees and their workplace, and allowing the Union to distribute ballot papers and collect them. The orders made by the court ensured that the employees' right to engage in protected action was upheld, and that the company's obligations under the Fair Work Act were complied with.

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