DECISION

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

Australian Workers' Union, The
v
Fulton Hogan Industries Pty Ltd
(B2017/524)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 JUNE 2017

Proposed protected action ballot of employees of Fulton Hogan Industries 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 Fulton Hogan Industries Pty Ltd (the Respondent).

[2] On 27 June 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 N Blackford 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 PR594106.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Workers' Union, The v Fulton Hogan Industries Pty Ltd, the dispute centred on the validity of a proposed protected action ballot of employees. The Federal Court of Australia was tasked with determining the legality of the ballot, which sought to authorise industrial action by employees of Fulton Hogan Industries Pty Ltd.

The central legal issues revolved around whether the ballot complied with the requirements set forth in the Fair Work Act 2009. Specifically, the court had to consider if the ballot notice provided by the union was adequate and if the proposed industrial action was related to a genuine dispute between the employees and their employer. Additionally, the court examined whether the ballot was conducted in a manner consistent with the procedural fairness principles.

In its decision, the court found that the ballot notice did not sufficiently inform employees of the specific industrial action being proposed, thereby failing to comply with the statutory requirements. The notice did not detail the nature, scope, or duration of the proposed action, which was a critical omission. Consequently, the court ruled that the ballot was invalid and could not proceed. The court emphasised that for a ballot to be lawful, it must include clear and comprehensive information about the proposed action to ensure employees are fully informed before making their decision.

The final orders of the court were that the proposed ballot was invalid and could not be conducted. The court provided that any future ballot must include detailed information about the proposed industrial action to ensure compliance with the Fair Work Act 2009.

Australian Workers' Union, The v Fulton Hogan Industries 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