DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Hobart City Council
(B2020/617)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 OCTOBER 2020

Proposed protected action ballot of employees of Hobart City Council.

[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 Hobart City Council (Respondent).

[2] On 9 October 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 K Midson 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 PR723443.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by the Hobart City Council, sought to conduct a protected action ballot to determine if the employees wished to engage in industrial action. The Hobart City Council opposed the ballot, arguing that it was not a protected action as it did not relate to the employees' terms and conditions of employment. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue before the court was whether the proposed ballot related to the employees' terms and conditions of employment, as required under the Fair Work Act 2009. The court had to determine whether the ballot, which sought to ascertain the employees' views on potential industrial action, met the statutory definition of a protected action. This involved examining the purpose and content of the ballot and whether it was directly connected to the employees' employment terms.

The court found that the proposed ballot did indeed relate to the employees' terms and conditions of employment. The ballot aimed to determine if the employees wished to engage in industrial action, which, if carried out, would directly affect their employment terms. The court held that the ballot was a legitimate means of ascertaining the employees' intentions regarding potential industrial action, which is inherently connected to their employment terms. Consequently, the court ruled in favour of the union and granted the application to conduct the ballot.

The Federal Circuit Court of Australia ordered that the Australian Workers' Union could proceed with the proposed ballot of the Hobart City Council employees. The court's decision affirmed that the ballot was a legitimate protected action under the Fair Work Act 2009, as it directly related to the employees' terms and conditions of employment.

Australian Workers' Union, The v Hobart City Council

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established