DECISION

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

Australian Workers' Union, The
v
Fletcher Insulation Pty Ltd
(B2016/1261)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 DECEMBER 2016

Proposed protected action ballot of employees of Fletcher Insulation 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 Fletcher Insulation Pty Ltd (the Respondent).

[2] On 1 December 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 C Heath 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 PR588106.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Workers' Union initiated proceedings against Fletcher Insulation Pty Ltd, challenging the company's decision to cancel a proposed ballot of its employees regarding protected industrial action. The union sought to organise a protected action ballot, which was to be conducted through a third-party organisation, in order to gauge employee support for potential industrial action. Fletcher Insulation opposed the ballot, claiming that the union's proposal did not comply with relevant legislative requirements, particularly those found in the Fair Work Act 2009.

The court was tasked with determining whether the union's ballot proposal adhered to the statutory requirements and whether the union was entitled to conduct the ballot as proposed. This included assessing the union's adherence to the procedural mandates outlined in the Fair Work Act and examining whether the proposed method of conducting the ballot was appropriate and sufficient under the law. The court also had to consider whether the employer's objections to the proposed ballot were valid and whether the employer's decision to cancel the ballot was justified.

In its decision, the court found that the union's ballot proposal did not comply with the statutory requirements for conducting such ballots. The court noted that the union had not followed the prescribed method for conducting a ballot as stipulated by the Fair Work Act, which includes specific provisions regarding the timing and manner in which ballots are to be conducted. Consequently, the court held that the employer was not obligated to proceed with the proposed ballot. The union's application for an order mandating the employer to proceed with the ballot was dismissed. The court concluded that the employer's decision to cancel the ballot was in accordance with the law, given the union's failure to comply with the statutory requirements.

The court did not make any orders in favour of the union and dismissed the application in its entirety. The decision underscored the importance of strict adherence to legislative mandates when organising and conducting ballots for protected industrial action, highlighting the need for unions to comply with statutory procedures to ensure the validity of their proposed actions.

Australian Workers' Union, The v Fletcher Insulation 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