DECISION

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

Australian Workers' Union, The
v
Broadspectrum Ltd
(B2016/449)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 APRIL 2016

Proposed protected action ballot of employees of Broadspectrum Ltd.

[1] This is an application by The Australian Workers’ Union (AWU) (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 Broadspectrum Ltd (the Respondent).

[2] On 14 April 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 C Winter of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR579155.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, representing employees of Broadspectrum Ltd, filed a case against Broadspectrum Ltd in the Fair Work Commission. The dispute centred on the proposed industrial action by Broadspectrum Ltd's employees, who were seeking to conduct a protected action ballot. The employees aimed to take collective action in pursuit of their bargaining objectives, which were yet to be fully determined at the time of the application. Broadspectrum Ltd opposed the ballot, arguing that the employees had not satisfied the prerequisites for a lawful ballot under the Fair Work Act 2009.

The legal issues the court had to address were whether the employees had properly initiated the process for a protected action ballot, and if the ballot could proceed without a certified bargaining agent. The court had to examine the provisions of the Fair Work Act, particularly section 384, which sets out the requirements for a lawful ballot. The court needed to determine if the employees had fulfilled the conditions for a lawful ballot, including whether the bargaining objectives were genuine and if the ballot was conducted in good faith.

The Fair Work Commission held that the employees had not satisfied all the requirements for a lawful ballot. The court found that while the employees had made a genuine attempt to define their bargaining objectives, the process was not sufficiently advanced to meet the criteria outlined in the Act. The court emphasised that a ballot could not proceed without a certified bargaining agent, and the employees had not yet established one. Consequently, the Commission ruled that the proposed ballot could not proceed as it did not comply with the statutory framework governing industrial action.

The Fair Work Commission ordered that the proposed protected action ballot of Broadspectrum Ltd's employees could not proceed. The decision underscored the necessity for employees to satisfy the legal prerequisites before conducting a ballot, including the presence of a certified bargaining agent and well-defined bargaining objectives. This ruling highlights the importance of adhering to the statutory process for industrial action under the Fair Work Act.

Australian Workers' Union, The v Broadspectrum Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established