DECISION

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

Australian Workers' Union, The
v
BOC Limited
(B2016/1235)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 24 NOVEMBER 2016

Proposed protected action ballot of employees of BOC 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 BOC Limited (the Respondent).

[2] On 24 November 2016 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 PR587861.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed ballot of employees of BOC Limited for protected action was lawful and valid. The dispute centred on whether the ballot was properly conducted in accordance with the applicable industrial relations laws. The case was heard in the Federal Court of Australia.

The court was required to determine whether the ballot complied with the procedural requirements stipulated under the Fair Work Act 2009. Specifically, the issues included whether the ballot was conducted in good faith and whether it adhered to the notice and timing provisions set forth in the legislation. Additionally, the court had to examine whether the ballot materials were adequately provided to the employees to ensure they were fully informed about the proposed action.

The court held that the ballot did not comply with the statutory requirements, primarily due to inadequate notice and improper dissemination of ballot materials. The court found that the union had not provided sufficient information to the employees to enable them to make an informed decision. Consequently, the court ruled that the ballot was invalid and could not proceed. The decision underscored the importance of strict adherence to procedural mandates in industrial action to ensure fairness and transparency.

The court issued a declaration that the proposed ballot of employees of BOC Limited for protected action was unlawful and invalid. The union was restrained from proceeding with the ballot as conducted. The court's ruling reinforced the necessity for unions to meticulously follow procedural guidelines when organising ballots for industrial action to maintain legitimacy and compliance with industrial laws.

Australian Workers' Union, The v BOC Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established