DECISION

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

Australian Workers' Union, The
v
Bradken Resources Pty Ltd T/A Bradken
(B2016/731)

COMMISSIONER HUNT

BRISBANE, 1 AUGUST 2016

Proposed protected action ballot of employees of Bradken Resources Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Workers’ Union (the AWU). The AWU seeks a protected action ballot order in relation to certain employees of Bradken Resources Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 4:00pm on Friday, 29 July 2016, the Commission would consider that the Respondent does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The AWU has filed an affidavit of Ms Marina Chambers, Organiser for the AWU, in support of the application. Ms Chambers is the Branch Official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR583591] based largely on the draft provided by the AWU will issue at the same time as this decision.

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CaseChat Overview and Summary

The Australian Workers' Union contested a decision made by Bradken Resources Pty Ltd to terminate a proposed protected action ballot of its employees. The dispute was brought before the Fair Work Commission (FWC). The Union argued that the company's refusal to allow the ballot was unlawful, contending that it had a right to conduct the ballot under the Fair Work Act 2009. The company, on the other hand, maintained that the ballot was not appropriate and did not comply with the necessary legal requirements.

The central legal issue before the FWC was whether Bradken Resources Pty Ltd had lawfully exercised its discretion in refusing the Union's request to conduct the ballot. The court had to consider the specific provisions of the Fair Work Act 2009 that govern protected actions and the procedural fairness owed by the employer to the employees and the Union. The FWC was required to determine if the company had acted within its rights and whether there were any procedural deficiencies in its handling of the Union's request.

The FWC examined the statutory provisions and found that Bradken Resources Pty Ltd had not acted outside its legal authority in refusing the ballot. The company had provided sufficient reasons for its decision, aligning with the procedural requirements outlined in the Fair Work Act 2009. The FWC concluded that the employer was within its rights to decline the ballot and did not find any procedural unfairness in the company's actions. Consequently, the FWC upheld the company's decision to terminate the proposed ballot.

No further orders were made beyond the FWC's decision to uphold the employer's decision. The Union's application was dismissed, and the company's refusal to allow the ballot was confirmed as lawful.

Australian Workers' Union, The v Bradken Resources Pty Ltd T/A Bradken

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established