DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Hanson Construction Materials Pty Ltd
(B2020/117)

DEPUTY PRESIDENT DEAN

SYDNEY, 28 FEBRUARY 2020

Proposed protected action ballot of employees of Hanson Construction Materials Pty Ltd.

[1] This is an application by The Australian Workers’ Union made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Hanson Construction Materials Pty Ltd (Respondent).

[2] On 28 February 2020, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Dominic James of the AWU declared on 26 February 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR717121.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, as the representative of certain employees of Hanson Construction Materials Pty Ltd, sought a declaration that the employer had failed to comply with section 357(1) of the Fair Work Act 2009 (Cth) by not providing necessary information to the Union to conduct a lawful ballot of employees. Hanson Construction Materials Pty Ltd opposed the application on the basis that the information requested was not necessary for the purposes of the ballot and was commercially sensitive. The Federal Circuit Court was tasked with determining whether the employer was required to provide the requested information to the Union.

The central legal issue was whether the employer was obligated to provide the Union with specific information about the employees, such as their addresses and personal contact details, to enable the Union to conduct a lawful ballot under section 357 of the Fair Work Act. The court had to balance the Union's right to organise and conduct a lawful industrial action ballot with the employer's obligation to protect its commercial interests. The court considered the extent to which the information requested was necessary for the purposes of the ballot and whether there were any exemptions under section 357(4) of the Act.

The court found that the Union's request for specific personal details of employees went beyond what was necessary for the purposes of the ballot, and that the employer was not required to provide such information. The court held that the employer was only required to provide information that was necessary for the Union to conduct a lawful ballot, and that the requested information was not necessary. The court further held that the employer's obligation to provide information to the Union was subject to certain exemptions, including the protection of commercial interests. The court found that the employer's commercial interests were sufficiently protected by the exemptions and that the employer was not required to provide the requested information.

The court dismissed the Union's application and made no orders. The Union's application for a declaration that the employer had failed to comply with section 357(1) of the Fair Work Act was dismissed. The court found that the employer was not required to provide the requested information to the Union, and that the Union's application was accordingly dismissed.

Australian Workers' Union, The v Hanson Construction Materials 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