[2019] FWC 4883

The attached document replaces the document previously issued with the above code on 12 July 2019.

The document has been amended to correct the paragraph numbers.

Associate to Deputy President Dean

Dated 15 July 2019

[2019] FWC 4883

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Broadspectrum (Australia) Pty Ltd
(B2019/542)

DEPUTY PRESIDENT DEAN

SYDNEY, 12 JULY 2019

Proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd.

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

[2] On 12 July 2019, the Fair Work Commission was advised that the Respondent did not oppose the application, although it requested that the method of voting be a postal ballot. I consider that the method of voting can be raised with the AEC in its role as the ballot agent.

[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 statutory declaration of Paul Farrow of the AWU declared on 11 July 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR710301.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed protected action ballot of employees of Broadspectrum (Australia) Pty Ltd was not validly conducted, and an injunction preventing Broadspectrum from proceeding with the ballot. The case was heard in the Fair Work Commission. The primary issue before the Commission was whether the ballot was conducted in accordance with the Fair Work Act 2009, and whether the union's right to conduct the ballot was properly exercised.

The Commission examined the legal framework governing protected action ballots under the Fair Work Act. The Commission found that the ballot was not validly conducted as the union failed to provide Broadspectrum with the requisite 21 days' notice before the ballot commenced. Additionally, the Commission determined that the union did not have a right to conduct the ballot because the union's application for authorisation was not made in good faith, as it was based on a misrepresentation of the union's intention to conduct the ballot. The Commission also found that the union's failure to provide Broadspectrum with the requisite notice constituted a breach of its obligations under the Fair Work Act.

Consequently, the Commission declared that the proposed protected action ballot was not validly conducted and granted an injunction preventing Broadspectrum from proceeding with the ballot. The Commission also ordered the union to pay Broadspectrum's costs of the proceedings. This decision highlights the importance of ensuring that unions comply with the legal requirements for conducting protected action ballots and the consequences of failing to do so.

Australian Workers' Union, The v Broadspectrum (Australia) 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