Australian Workers' Union, The v Liberty Bell Bay Pty Ltd T/A Liberty Bell Bay Pty Ltd Summary

[2022] FWC 1127

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The
v

Liberty Bell Bay Pty Ltd T/A Liberty Bell Bay Pty Ltd

(B2022/423)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 MAY 2022

Proposed protected action ballot of employees of Liberty Bell Bay Pty Ltd

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 Liberty Bell Bay Pty Ltd (the Respondent).

On 11 May 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Robert Flanagan 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 PR741415.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members, sought to conduct a ballot of employees of Liberty Bell Bay Pty Ltd concerning potential industrial action. The matter was heard in the Fair Work Commission. The legal issues centred around the validity of the ballot notice issued by the Union and the employer's right to seek an injunction to prevent the ballot. The Union argued that the ballot notice was valid and that the employer had not demonstrated sufficient grounds for an injunction. The employer contended that the ballot notice was defective and sought to enjoin the ballot to protect its business interests.

The Fair Work Commission found that the ballot notice issued by the Union was defective as it did not specify the date on which the ballot was to be held. However, the Commission noted that the Union had subsequently provided the necessary information to the employer, thereby curing the defect. The Commission held that the employer had not demonstrated a sufficient likelihood of harm to its business to warrant an injunction. The Union's right to conduct the ballot was upheld, and the employer's application for an injunction was dismissed.

The Commission's decision was grounded in the principles of industrial action and the need to balance the rights of employers and employees. The Court found that the Union's initial failure to provide complete information in the ballot notice did not, in itself, justify an injunction, especially when the defect was promptly rectified. The Court emphasised the importance of allowing employees to exercise their rights to organise and take collective action, subject to certain procedural requirements. The Commission's decision underscores the need for clarity and precision in the conduct of protected action ballots, while also recognising the importance of protecting the rights of both parties. The employer was ordered to pay the Union's costs of the application.

Australian Workers' Union, The v Liberty Bell Bay Pty Ltd T/A Liberty Bell Bay Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established