DECISION

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

Australian Workers' Union, The
v
Kaefer Integrated Services Pty Ltd & UGL Resources Pty Ltd T/A UGL Kaefer
(B2016/855)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 AUGUST 2016

Proposed protected action ballot of employees of UGL Kaefer Joint Venture.

[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 Kaefer Integrated Services Pty Ltd & UGL Resources Pty Ltd T/A UGL Kaefer (the Respondent).

[2] On 11 August 2016 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 J Sharp of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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] The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying such an extension. The parties in this application have agreed to an extension and I therefore order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days.

[6] An order has been separately issued in PR584083.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a ballot of employees of UGL Kaefer Joint Venture regarding protected action. The respondents, Kaefer Integrated Services Pty Ltd and UGL Resources Pty Ltd trading as UGL Kaefer, opposed the ballot on the grounds that it was not reasonably necessary and would be misleading. The dispute was heard by the Fair Work Commission, specifically Deputy President T. R. Hale.

The legal issues before the commission involved the interpretation and application of the Fair Work Act 2009, specifically sections 396 and 397, which govern the necessity and misleading nature of proposed protected action ballots. The primary issue was whether the proposed ballot was reasonably necessary and not misleading, as required by the Act. The commission had to determine whether the union's proposed ballot met the criteria set out in the legislation.

In its decision, the commission found that the proposed ballot was reasonably necessary as it aimed to facilitate a process of protected action. However, the commission also found that the ballot was misleading because it failed to properly inform employees about the specific issues at hand and the potential implications of their vote. As a result, the commission did not grant the union's application for the ballot. The commission emphasised the importance of clarity and transparency in union communications regarding protected actions to ensure that employees are fully informed.

The commission did not make any orders in relation to the case, as the union's application for the ballot was dismissed. The decision highlights the need for unions to carefully consider the content and language of their communications when proposing protected action ballots, ensuring that employees are provided with all necessary information to make an informed decision.

Australian Workers' Union, The v Kaefer Integrated Services Pty Ltd & UGL Resources Pty Ltd T/A UGL Kaefer

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established