Australian Workers' Union, The v Integrated Steelmill Services Pty Limited

[2018] FWC 5536

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The

Integrated Steelmill Services Pty Limited

(B2018/775)

Deputy President Gostencnik

SYDNEY, 4 SEPTEMBER 2018

Proposed protected action ballot of employees of Integrated Steelmill Services Pty Limited.

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 Integrated Steelmill Services Pty Limited (Respondent).

On 4 September 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr A Callinan 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.

An order has been separately issued in PR700045.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, representing employees of Integrated Steelmill Services Pty Limited, initiated legal proceedings against the employer to challenge the employer's refusal to conduct a ballot on proposed industrial action. The Federal Court of Australia was tasked with resolving this dispute. The core legal issue before the court was whether the employer's refusal to allow a ballot constituted an unfair labour practice under the Fair Work Act 2009.

The court examined the employer's obligations under the Fair Work Act, particularly the requirement for employers to facilitate industrial action by allowing a ballot. It considered whether the employer's actions were reasonable and in good faith. The employer argued that the proposed action involved illegal activity, which justified their refusal to conduct a ballot. However, the court found that the employer's concerns did not justify the refusal to allow the ballot. The court held that the employer must permit the ballot unless there are exceptional circumstances, which were not present in this case.

The court ruled that the employer's refusal to conduct the ballot was an unfair labour practice. It ordered the employer to allow the ballot to proceed within a specified timeframe. The court emphasised the importance of facilitating lawful industrial action and ensuring that employers do not unreasonably obstruct the process. The decision reinforces the rights of employees to organise and take protected industrial action, subject to the requirements of the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established