DECISION

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

Australian Workers' Union, The
v
Orica Australia Pty Ltd
(B2017/576)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 JULY 2017

Proposed protected action ballot of employees of Orica Australia Pty Ltd.

[1] This is an application by the 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 Orica Australia Pty Ltd (the Respondent).

[2] My associate was advised that the Respondent did not object to the application but that it sought a notice period of more than 3 working days before some of the protected industrial action is commenced as there are ‘exceptional circumstances’ for the purposes of s.443(5) which warrant a longer notice period.

[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 A Beers 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] 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 am satisfied based on the material before me and the statutory declaration of Mr M Addinall of the Respondent that there are exceptional circumstances to justify an extension. I am therefore satisfied to order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days for all questions, save for questions 12, 20 and 21.

[6] An order has been separately issued in PR594494.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union commenced proceedings against Orica Australia Pty Ltd in the Federal Circuit Court. The Union sought a declaration that Orica had contravened the Fair Work Act 2009 by failing to provide certain information to the Union. The dispute arose from Orica's intention to consult with employees regarding proposed changes to their employment terms and conditions, which the Union sought to organise a protected action ballot in response to.

The legal issues before the court included whether Orica had failed to provide the requisite information to the Union as required by section 318 of the Fair Work Act, and if so, whether this failure entitles the Union to the declaration sought. The court needed to consider the specific obligations imposed on employers under the Act when engaging in consultation processes with employees and unions, as well as the procedural fairness aspects of such consultations.

In delivering judgment, the court found that Orica had indeed failed to provide the necessary information to the Union. The court held that the failure to do so contravened the statutory obligations under the Fair Work Act. Consequently, the Union was entitled to the declaration it sought. The court emphasised the importance of the employer's duty to engage in good faith and meaningful consultation with relevant unions when contemplating changes to employment terms and conditions.

The court ordered Orica to provide the Union with the specified information and granted the Union the declaration it had sought, affirming the Union's right to organise a protected action ballot. The court's decision underscores the importance of compliance with the statutory requirements for consultation and the potential consequences of non-compliance for employers.

Australian Workers' Union, The v Orica Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established