DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Capral Limited T/A Capral
(B2018/682)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 AUGUST 2018

Proposed protected action ballot of employees of Capral Limited T/A Capral.

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Capral Limited T/A Capral (Respondent).

[2] On 3 August 2018 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 G Penn 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 PR609695.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a protected action ballot among the employees of Capral Limited, a company that was in voluntary administration. The dispute centred around whether the union's proposed ballot, which aimed to gather employee support for potential industrial action, was permissible under the relevant industrial laws. The case was heard in the Fair Work Commission.

The key legal issues before the Commission were whether the proposed ballot constituted an unlawful coercive act and if it was permissible under the Fair Work Act 2009. The Commission needed to determine if the ballot was an appropriate means to gauge employee sentiment and support for potential industrial action, given the company's administration status. The central question was whether the ballot was coercive in nature and if it complied with the legislative requirements.

The Fair Work Commission concluded that the proposed ballot did not constitute an unlawful coercive act. The Commission found that the ballot was not coercive, as it was not designed to compel employees to take specific actions or support particular outcomes. Instead, the ballot aimed to ascertain the level of employee support for potential industrial action. Furthermore, the Commission noted that the employees' participation in the ballot was voluntary, and no pressure or undue influence was applied to them. Consequently, the Commission approved the ballot, allowing the union to proceed with gathering employee support for potential industrial action. The decision underscored the importance of ensuring that any proposed industrial action is backed by the employees and that the process for gauging support is fair and lawful.

Australian Workers' Union, The v Capral Limited T/A Capral

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established