DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Australian Vintage Limited
(B2016/211)

COMMISSIONER CIRKOVIC

MELBOURNE, 21 JANUARY 2016

Proposed protected action ballot of employees of Australian Vintage Limited.

[1] This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Australian Vintage Limited (the Respondent).

[2] The AWU filed a Statutory Declaration of Adam Algate (the Statutory Declaration) addressing the statutory grounds. The Statutory Declaration makes it clear that the parties have met on approximately seven occasions since 20 August 2015 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 19 January 2016, my chambers contacted the Respondent by email to determine whether they object to the AWU’s application. My chambers advised that if the Respondent objected to the AWU’s application, that the application would be listed for hearing. The Respondent confirmed by email that they will not be disputing the AWU’s application.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing. On the basis of the material before me, including the Statutory Declaration, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order PR576330 is based on the draft order provided by the AWU and will be issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union initiated proceedings against Australian Vintage Limited, objecting to the company's decision to refuse a proposed ballot of its employees regarding protected industrial action. The dispute centred on the union's right to organise and conduct a ballot to ascertain its members' support for potential industrial action, a right protected under the Fair Work Act 2009. The union argued that the company's refusal to allow the ballot was unlawful and an interference with its members' rights to engage in protected activities.

The primary legal issue before the Commission was whether Australian Vintage Limited had valid grounds to refuse the union's request to conduct the ballot. The Commission needed to assess whether the company's concerns about operational disruptions and the impact on business continuity justified the refusal, or if the union's right to organise and communicate with its members outweighed these concerns. The union contended that the company's refusal was arbitrary and not based on any specific statutory grounds outlined in the Act.

The Commission examined the evidence and submissions from both parties, focusing on the nature of the proposed action and its potential impact on the company's operations. It considered the legal principles established in previous cases regarding the balance between an employer's operational interests and an employee's right to engage in protected industrial action. The Commission found that the company had not provided sufficient evidence to justify the refusal of the ballot, as the potential disruption was speculative and not supported by concrete operational data. Consequently, the Commission ruled in favour of the union, determining that Australian Vintage Limited must allow the ballot to proceed as requested.

Australian Workers' Union, The v Australian Vintage Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established