DECISION

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

Australian Workers' Union, The
v
Bradken Resources Pty Limited
(B2017/140)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 FEBRUARY 2017

Proposed protected action ballot of employees of Bradken Resources Pty 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 Bradken Resources Pty Limited (the Respondent).

[2] On 13 February 2017 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 Cameron 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 PR590189.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought a proceeding against Bradken Resources Pty Limited in the Federal Court, seeking an order to allow a proposed ballot of Bradken employees on protected action. Bradken opposed the application on the basis that the ballot notice did not comply with the Fair Work Act 2009 (Cth). The dispute arose from the Union's intention to ballot employees on protected industrial action, including a strike, to address the company's refusal to pay employees the penalty rates provided for in their relevant award. The Union argued that Bradken had not provided the requisite information in the ballot notice and that, as a result, the notice was invalid and the ballot should proceed.

The central legal issues before the Court were whether Bradken was required to provide the requisite information in the ballot notice, and if not, whether the Union's ballot notice was valid in the absence of such information. The Court held that Bradken was not required to provide the requisite information, as the Fair Work Act only requires the employer to provide information if it is requested by the union. Further, the Court found that the Union's ballot notice was valid, as it contained sufficient information for employees to make an informed choice on whether to participate in the protected action. The Court also found that the Union was not required to include the requisite information in the ballot notice, as the information was not relevant to the employees' decision to participate in the protected action.

As a result, the Court ordered that Bradken allow the Union to conduct a ballot of its employees on protected action. The Court held that the Union's ballot notice was valid, and that Bradken was required to facilitate the ballot as per the Fair Work Act. The Court emphasised the importance of the right to protected action, and the need for employers to comply with their obligations under the Act. This decision reinforces the rights of employees to take protected industrial action, and the importance of ensuring that employers provide the requisite information in ballot notices where required by the Act.

Australian Workers' Union, The v Bradken Resources Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established