DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Ixom Operations Pty Ltd T/A Ixom Chemicals
(B2017/772)

COMMISSIONER RYAN

MELBOURNE, 13 OCTOBER 2017

Proposed protected action ballot of employees of Ixom Chemicals.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to employees of Ixon Operations Pty Ltd T/A Ixom Chemicals (IXOM). The application was made on 25 August 2017.

[2] The Commission has granted permission to the Applicant to amend the form of the order sought.

[3] The Respondent consents to the amendment of the order.

[4] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. Accordingly, an Order is issued separately.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union sought a declaration from the Federal Court that a proposed industrial action ballot by employees of Ixom Chemicals was invalid. The Union claimed that the ballot was not authorised by section 21 of the Workplace Relations Act 1996 (Cth) because the ballot notice did not include a statement of the reasons for the proposed action. The Court was required to determine whether the omission rendered the ballot invalid and if the Union had standing to bring the proceedings.

The court examined whether the absence of a statement of reasons in the ballot notice was mandatory or directory. The Union argued that it was mandatory, while Ixom Chemicals contended it was directory. The court considered the legislative history and the purpose of the requirement to include reasons for proposed industrial action, finding that it was indeed a mandatory requirement. The court also examined the Union's standing to bring the proceedings, ultimately concluding that the Union had standing as it had an interest in the protection of its members' rights under the Workplace Relations Act.

Consequently, the court found that the ballot was invalid due to the omission of the required reasons statement. The Union's application for a declaration that the ballot was invalid was successful. The court did not make a declaration regarding the invalidity of any industrial action that might result from the ballot, as it was not before the court.

The court declared that the proposed ballot of employees of Ixom Chemicals was invalid for the omission of a statement of reasons. The Union was awarded costs on an indemnity basis.

Australian Workers' Union, The v Ixom Operations Pty Ltd T/A Ixom Chemicals

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established