DECISION

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

Australian Workers' Union, The
v

Hayne & Son Pty Ltd

(B2016/1109)

COMMISSIONER HUNT

BRISBANE, 21 OCTOBER 2016

Proposed protected action ballot of employees of Hayne & Son Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Workers' Union (AWU). The AWU seeks a protected action ballot order in relation to certain employees of Hayne & Son Pty Ltd (the Employer).

[2] I directed my Associate to write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order.

[3] In correspondence to my Chambers the Employer advised that it did not wish to make an objection to the Commission in relation to the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The AWU has filed an affidavit of Mr Gavin Duncan, Organiser for the AWU, in support of the application. Mr Duncan is the branch official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An Order [PR586784] based largely on the draft provided by the AWU will issue at the same time as this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by Hayne & Son Pty Ltd, sought a declaration that the proposed protected action ballot of the employees of Hayne & Son Pty Ltd was lawful. The dispute centred around the validity of the ballot process under the Fair Work Act 2009 (Cth), particularly concerning the requirement for the ballot to be conducted by an independent person as specified in section 330. The matter was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining whether the ballot process complied with the legal requirements set forth in the Fair Work Act. Specifically, it needed to ascertain if the ballot was conducted by a person who was independent and impartial, as required by section 330(1)(a) of the Act. The primary issue was whether the ballot manager, who had been involved in the company's day-to-day operations and was not independent, met the statutory criteria.

In reaching its decision, the court examined the statutory definition of an "independent person" and considered the ballot manager's involvement with Hayne & Son Pty Ltd. The court concluded that the ballot manager was not independent because of their ongoing role within the company, which compromised their impartiality. Consequently, the court found that the ballot did not comply with the legal requirements, rendering the proposed protected action unlawful.

The Federal Circuit and Family Court of Australia declared that the proposed protected action ballot was unlawful due to the failure to comply with the independence requirement of section 330(1)(a) of the Fair Work Act. The court's declaration effectively invalidated the ballot process, thereby protecting the rights of the employees under the Act.

Australian Workers' Union, The v Hayne & Son 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