DECISION

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

Australian Workers' Union, The
v
Hymix Australia Pty Ltd
(B2017/611)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 JULY 2017

Proposed protected action ballot of employees of Hymix Australia 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 Hymix Australia Pty Ltd (the Respondent).

[2] On 26 July 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 P Delaney 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 PR594730.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed protected action ballot by employees of Hymix Australia Pty Ltd was not lawful and should not be held. The matter was heard in the Fair Work Commission, where the employer contested the union's claim. The crux of the dispute lay in the interpretation and application of the relevant sections of the Fair Work Act 2009, specifically regarding the procedural requirements for a protected action ballot and the timing of such a ballot in relation to a pending application for an unfair dismissal.

The Fair Work Commission considered whether the union's ballot was procedurally sound and whether it complied with the statutory provisions regarding the timing of protected actions. The employer argued that the ballot was premature and not aligned with the legislative framework governing protected actions. The Commission assessed the union's actions against the established criteria and timelines set out in the Fair Work Act, focusing on the interplay between the procedural requirements and the employer's right to challenge the union's actions.

In its decision, the Commission concluded that the union's proposed ballot did not comply with the necessary statutory requirements. The Commission found that the timing of the ballot was inappropriate given the concurrent proceedings for unfair dismissal, which could prejudice the outcome of those proceedings. Consequently, the Commission ruled that the proposed ballot was not lawful and should not proceed. The employer's challenge to the union's actions was upheld, and the Commission issued a declaration that the proposed ballot was invalid.

The Commission's decision effectively halted the union's proposed ballot, reinforcing the importance of adhering to statutory timelines and procedures when organising protected actions. The Commission's ruling ensured that the employer's rights were protected, and the procedural integrity of the unfair dismissal proceedings was maintained. The outcome highlighted the necessity for unions to comply with legislative requirements when organising and conducting protected actions.

Australian Workers' Union, The v Hymix 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