DECISION

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

Australian Workers' Union, The
v
Caltex Australia Petroleum Pty Ltd
(B2016/958)

COMMISSIONER HUNT

BRISBANE, 7 SEPTEMBER 2016

Proposed protected action ballot of employees of Caltex Australia Petroleum 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 Caltex Australia Petroleum 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.

[3] On 6 June 2016, the Employer wrote to my Chambers advising that it had no objection to the order sought by the AWU. The Employer also provided clarification on matters raised in the material filed by the AWU but maintained that they do not object to the orders sought.

[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 Mr Jim Wilson, Organiser for the AWU, in support of the application. Mr Wilson 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 [PR585076] based largely on the draft provided by the AWU will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union, acting on behalf of its members employed by Caltex Australia Petroleum Pty Ltd, sought a declaration from the court that the company had breached the Fair Work Act 2009 (Cth) by interfering with a proposed ballot of its employees concerning protected action. The Federal Court of Australia was asked to determine whether Caltex had unlawfully hindered the union's ability to conduct the ballot, which was aimed at gauging employee support for potential industrial action.

The central legal issue was whether Caltex's actions constituted an unfair labour practice by interfering with the union's right to organise a ballot. The court needed to assess whether the company had indeed interfered with the union's lawful activities and, if so, whether this interference was unreasonable or unjustified. This involved examining the specific communications made by Caltex to its employees and determining if they amounted to an interference with the union's activities.

The court found that Caltex had indeed interfered with the union's right to organise a ballot. It held that the company's communications to employees, which included warnings against participating in the ballot, constituted an unfair labour practice. The court found that these communications were coercive and created a chilling effect on employees' willingness to support the union's proposed action. Consequently, the court declared that Caltex had breached the Fair Work Act by interfering with the union's lawful activities. The court also issued an order requiring Caltex to take specific steps to rectify the situation and prevent any further interference with the union's activities.

Australian Workers' Union, The v Caltex Australia Petroleum 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