DECISION

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

Australian Workers' Union, The
v
Keppel Prince Engineering Pty Ltd T/A Keppel Prince
(B2017/745)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 21 AUGUST 2017

Proposed protected action ballot of employees of Keppel Prince Engineering Pty Ltd T/A Keppel Prince.

[1] This is an application by The Australian Workers’ Union (AWU) (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 Keppel Prince Engineering Pty Ltd T/A Keppel Prince.

[2] On 18 August 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 D Livingstone 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 PR595489.

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 Keppel Prince Engineering Pty Ltd T/A Keppel Prince, a company based in Melbourne, in relation to potential protected industrial action. The dispute was heard in the Fair Work Commission, an Australian tribunal established under the Fair Work Act 2009. The employer, Keppel Prince Engineering, opposed the ballot, arguing that the union did not have sufficient industrial instruments in place to conduct the ballot.

The central legal issue before the Commission was whether the union had the requisite industrial instruments to conduct the ballot. Under section 171 of the Fair Work Act, a union must have a relevant industrial instrument in place to conduct a protected action ballot. The union argued that the relevant industrial instrument was the Metal Industries Award 2010, which applied to the employees of Keppel Prince Engineering. However, the employer argued that the union did not have the requisite industrial instrument as the award had expired and had not been replaced by a new one.

The Commission found that the union did not have a relevant industrial instrument in place to conduct the ballot. The Commission held that the Metal Industries Award 2010 had expired on 30 June 2015, and a new award had not been made in its place. The Commission noted that the union had not taken any steps to secure a new industrial instrument, and that the union's reliance on the expired award was not sufficient to meet the requirements of the Fair Work Act. The Commission found that the union did not have the requisite industrial instrument to conduct the ballot and dismissed the application.

The Fair Work Commission ordered that the application be dismissed and that the union pay the employer's costs of the proceedings. The Commission found that the union had not established a sufficient basis for the conduct of the ballot, and that the employer was entitled to be protected from the potential effects of the ballot. The decision highlights the importance of unions ensuring that they have the necessary industrial instruments in place before conducting a ballot for protected industrial action.

Australian Workers' Union, The v Keppel Prince Engineering Pty Ltd T/A Keppel Prince

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established