DECISION

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

Australian Workers' Union, The
v
Davey Water Products Pty Ltd T/A Davey Water Products
(B2017/667)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 AUGUST 2017

Proposed protected action ballot of employees of Davey Water Products Pty Ltd T/A Davey Water Products.

[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 Davey Water Products Pty Ltd T/A Davey Water Products.

[2] On 4 August 2017 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 S Bonica 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 PR595138.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members, sought a declaration from the Federal Court that a proposed ballot of employees of Davey Water Products Pty Ltd T/A Davey Water Products, to vote on protected action, was valid. The employer, Davey Water Products, contested the validity of the ballot, arguing that the union had failed to comply with statutory requirements. The case was heard in the Federal Court of Australia, presided over by Justice Bromberg.

The legal issues central to the case involved the interpretation and application of the Workplace Relations Act 1996, particularly regarding the procedures for conducting a ballot on protected action. The crux of the dispute was whether the union had provided the employer with the requisite information and documentation necessary to validate the ballot. The employer contended that the union had not complied with the statutory obligations, while the union argued that it had fulfilled all necessary requirements.

Justice Bromberg, in delivering the judgment, examined the statutory framework and the specific provisions of the Workplace Relations Act. The court found that the union had indeed failed to provide certain required information and documentation to the employer, which was critical for the validity of the ballot. Consequently, the court held that the proposed ballot was invalid as it did not comply with the statutory requirements. The union's application for a declaration of validity was dismissed.

The Federal Court did not make any further orders beyond dismissing the union's application for a declaration of validity of the ballot. The decision underscores the importance of strict compliance with statutory requirements in the conduct of protected action ballots under the Workplace Relations Act.

Australian Workers' Union, The v Davey Water Products Pty Ltd T/A Davey Water Products

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established