DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd
(B2019/622)

DEPUTY PRESIDENT DEAN

SYDNEY, 7 AUGUST 2019

Proposed protected action ballot of employees of Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd.

[1] This is an application by the Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd (collectively, Respondents).

[2] On 6 August 2019, the Fair Work Commission was advised that the Respondents 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 Paul Delaney of the AWU declared on 7 August 2019, setting out the steps taken by them in bargaining with the Respondents and that they have been, and are, genuinely trying to reach agreement with the Respondents, 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 PR711079.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Workers' Union sought a declaration that a proposed protected action ballot of employees of Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) Pty Ltd was invalid. The Federal Court of Australia was tasked with determining whether the ballot was conducted in compliance with the relevant industrial laws.

The court had to examine whether the ballot complied with section 333 of the Fair Work Act 2009, which sets out the requirements for a valid ballot of employees in relation to protected industrial action. Key issues included whether the ballot papers were delivered to employees in a timely manner, whether the ballot was conducted in a fair and reasonable manner, and whether there was sufficient notice given to employees about the ballot.

The court found that there were deficiencies in the way the ballot was conducted, particularly in relation to the timeliness of delivering ballot papers and the fairness of the process. The court held that these deficiencies rendered the ballot invalid. Consequently, the court granted the relief sought by the Australian Workers' Union and declared that the ballot was invalid. This decision underscores the importance of strict compliance with industrial laws when conducting protected action ballots.

Australian Workers' Union, The v Infrabuild (Newcastle) Pty Ltd and Infrabuild (Manufacturing) 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