DECISION

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

Australian Workers' Union, The
v
Fulton Hogan Industries Pty Ltd T/A Fulton Hogan
(B2020/285)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2020

Proposed protected action ballot of employees of Fulton Hogan Industries Pty Ltd T/A Fulton Hogan.

[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 Fulton Hogan Industries Pty Ltd (Respondent).

[2] On 27 May 2020, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr R Mackintosh 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 PR719681.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, on behalf of its members who are employees of Fulton Hogan Industries Pty Ltd trading as Fulton Hogan, applied for a proposed protected action ballot to be conducted among the employees. The ballot sought to determine whether the employees were in favour of industrial action, specifically, the refusal to work overtime and on public holidays. Fulton Hogan opposed the application, asserting that the ballot would cause significant damage to the company and its customers, and that the ballot notice provided insufficient information for employees to make an informed decision. The matter was heard in the Fair Work Commission.

The legal issues before the Commission were whether the proposed ballot was reasonably likely to cause significant damage to the company and its customers, and whether the ballot notice was sufficient. The Commission considered the potential impact of the proposed industrial action on the company's operations and its customers, as well as the information provided to employees in the ballot notice. The Commission also considered the rights of the employees to organise and take protected industrial action under the Fair Work Act 2009.

The Commission found that the proposed ballot was reasonably likely to cause significant damage to the company and its customers, as the refusal to work overtime and on public holidays would significantly impact the company's ability to meet its contractual obligations to its customers. However, the Commission also found that the ballot notice provided sufficient information for employees to make an informed decision, as it included details of the proposed industrial action, the potential impact on the company and its customers, and the rights and obligations of the parties under the Fair Work Act. The Commission granted the application for a proposed protected action ballot, subject to certain conditions designed to mitigate the potential damage to the company and its customers.

The Fair Work Commission granted the application for a proposed protected action ballot, subject to conditions that the ballot notice be amended to include additional information about the potential impact of the proposed industrial action on the company and its customers, and that the ballot be conducted in a manner that minimises disruption to the company's operations. The Commission also ordered that the ballot be conducted within a specified timeframe, and that the results of the ballot be provided to the Commission within a specified period after the close of the ballot. The Commission emphasised the importance of protecting the rights of employees to organise and take protected industrial action, while also recognising the need to balance those rights with the legitimate interests of employers and their customers.

Australian Workers' Union, The v Fulton Hogan Industries Pty Ltd T/A Fulton Hogan

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established