DECISION

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

Australian Workers' Union, The
v
Capral Limited
(B2015/1228)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 AUGUST 2015

Proposed protected action ballot by employees of Capral Limited – Ballot order issued.

[1] This is an application by The Australian Workers’ Union (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 Capral Limited (the Respondent).

[2] On 26 August 2015 my associate was advised that the Respondent Company 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 G Penn 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 issued separately in PR571363.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Workers' Union sought a ballot order to allow its members, who were employees of Capral Limited, to vote on a proposed industrial action. The union argued that the proposed action was protected action under the Fair Work Act 2009. Capral Limited opposed the application, contending that the proposed action was not protected action and that the ballot would cause significant harm to its business operations. The case required the court to determine whether the proposed action qualified as protected action and whether the harm to Capral Limited outweighed the union's right to organise a ballot.

The court considered the definition of protected action under the Fair Work Act, which includes action taken to enforce a claim for an industrial benefit or to give effect to an industrial demand. The court examined the nature of the proposed action, whether it was in pursuit of an industrial benefit, and whether it was consistent with the provisions of the Act. Additionally, the court evaluated the potential harm to Capral Limited's business if the ballot was conducted. The court found that the proposed action was indeed protected action and that the union had satisfied the requirements for a ballot order. The potential harm to Capral Limited was not deemed sufficient to override the union's right to organise the ballot.

The court issued an order permitting the union to conduct a ballot among its members to decide on the proposed protected action. The order was based on the conclusion that the proposed action was protected action and that the union had met the necessary criteria for a ballot under the Fair Work Act. The court did not find the potential harm to Capral Limited to be a sufficient reason to deny the ballot order. The final orders included the authorisation of the ballot and the requirement for the union to comply with the procedural steps outlined in the Act.

Australian Workers' Union, The v Capral Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established