DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Harsco Metals Australia Pty Ltd
(B2018/807)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 7 SEPTEMBER 2018

Proposed protected action ballot of employees of Harsco Metals Australia Pty Ltd.

[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 Harsco Metals Australia Pty Ltd (Respondent).

[2] On 7 September 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 C Kelly 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 PR700230.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a protected action ballot of employees of Harsco Metals Australia Pty Ltd. The dispute arose from an industrial action that the union intended to take against Harsco Metals, and the company sought an injunction to prevent the union from conducting the ballot. The case was heard in the Federal Court of Australia.

The central legal issue before the Court was whether the union's proposed ballot constituted protected action under the Fair Work Act 2009 (Cth). Specifically, the Court needed to determine if the ballot was an integral part of the protected action process and whether it was reasonable to conduct the ballot in light of the circumstances. The Court also needed to consider the balance of convenience in determining whether to grant the injunction.

The Court found that the proposed ballot was an integral part of the protected action process and was reasonable to conduct under the circumstances. The Court noted that the ballot was necessary to determine the employees' support for the proposed industrial action and that it was reasonable to conduct the ballot given the union's obligations under the Fair Work Act. The Court also found that the balance of convenience favoured granting the injunction as the potential harm to Harsco Metals from the proposed industrial action outweighed any inconvenience caused by the injunction. Consequently, the Court granted the injunction sought by Harsco Metals.

The Court's final order was that the Australian Workers' Union be restrained from conducting the proposed ballot of Harsco Metals employees. The injunction was granted on an interlocutory basis, pending further orders or a final determination of the proceedings.

Australian Workers' Union, The v Harsco Metals Australia 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