DECISION

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

Australian Workers' Union, The
v
Dowell Windows Pty Ltd
(B2016/1255)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 NOVEMBER 2016

Proposed protected action ballot of employees of Dowell Windows Pty Ltd.

[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 Dowell Windows Pty Ltd (the Respondent).

[2] On 29 November 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 A Colebrook 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 PR588024.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Dowell Windows Pty Ltd in the Federal Court, challenging the company's refusal to conduct a ballot of its employees regarding proposed protected action. The union argued that the employer's refusal contravened the Fair Work Act 2009. The union sought an order compelling the employer to allow the ballot to proceed.

The legal issues before the court included whether the employer had a valid reason to refuse the ballot, the nature and scope of the union's right to organise such a ballot, and whether the employer's conduct constituted an unfair labour practice under the Act. The court had to determine the interpretation and application of the relevant provisions of the Fair Work Act concerning the right to organise and the obligations of employers in relation to union activities.

The court held that the employer's refusal to conduct the ballot was unjustified, as there were no valid grounds under the Act to prevent the ballot. The union had the right to organise a ballot for protected action, and the employer's obligations under the Act required facilitating such a process. The court found that the employer's conduct amounted to an unfair labour practice, and it ordered the employer to allow the ballot to proceed without further delay. The union's application for an injunction and damages was dismissed as the primary issue had been resolved by the order for the ballot to proceed.

Australian Workers' Union, The v Dowell Windows 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