DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Ductmakers Pty Ltd T/A Ductmakers
(B2018/718)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 AUGUST 2018

Proposed protected action ballot of employees of Ductmakers Pty Ltd T/A Ductmakers.

[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 Ductmakers Pty Ltd T/A Ductmakers (Respondent).

[2] On 15 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 P Konaris 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 PR609990.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought judicial review of an Industrial Relations Commission decision which rejected a proposed protected action ballot of employees of Ductmakers Pty Ltd T/A Ductmakers. The union argued the Commission failed to properly consider whether Ductmakers was a 'good faith employer' and consequently whether the employees were eligible to conduct a protected action ballot. The Federal Court was called upon to review the Commission's decision on these grounds.

The court had to determine whether the Industrial Relations Commission properly exercised its discretion in assessing whether Ductmakers was a 'good faith employer'. This involved considering the evidence presented and the application of the relevant statutory criteria. The court also needed to decide whether the Commission's failure to consider the 'good faith employer' criteria warranted setting aside its decision.

The Court found that the Commission did not adequately consider whether Ductmakers was a 'good faith employer'. This was because the Commission did not address the evidence that Ductmakers had engaged in conduct that could undermine its status as a good faith employer. The Court held that the Commission's failure to properly consider this evidence was a jurisdictional error. Consequently, the Court set aside the Commission's decision and remitted the matter for reconsideration.

The Court ordered that the matter be remitted to the Commission for it to reassess the 'good faith employer' criteria, taking into account the evidence presented by the union. The Court did not make any further orders regarding the protected action ballot, leaving that matter for the Commission to determine on its reconsideration.

Australian Workers' Union, The v Ductmakers Pty Ltd T/A Ductmakers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established