DECISION

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

Australian Workers' Union, The
v
Orica Australia Pty Ltd T/A Orica
(B2017/402)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 MAY 2017

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

[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 Orica Australia Pty Ltd (the Respondent).

[2] On 22 May 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 S Wood 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 PR593139.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a protected action ballot of employees of Orica Australia Pty Ltd, an explosives manufacturing company. The company opposed the ballot on the basis that it was not protected action as defined under the Fair Work Act 2009. The Federal Court of Australia was required to determine the legal nature of the proposed ballot and whether it constituted protected action.

The central issue before the court was whether the proposed protected action ballot of employees, which included a demand for a wage increase and other industrial claims, constituted protected action as defined under section 353 of the Fair Work Act 2009. The court had to consider whether the proposed action was genuinely for the purpose of giving effect to an industrial claim and whether it was reasonable in the circumstances. Additionally, the court needed to determine whether the proposed ballot was a genuine step in the process of industrial action as defined in section 353 of the Act.

The court found that the proposed ballot was not protected action as it was not genuinely for the purpose of giving effect to an industrial claim. The demands made by the union were considered unreasonable and not reasonably likely to be achieved. The court determined that the proposed ballot was not a genuine step in the process of industrial action, as it lacked the necessary industrial purpose and was not reasonably calculated to achieve the union's objectives. Consequently, the court ruled that the proposed ballot did not constitute protected action.

The court's decision resulted in the rejection of the union's application to conduct the protected action ballot. The court did not grant the union's request to hold the ballot, thereby preventing the employees from participating in the proposed industrial action. The ruling effectively maintained the status quo, allowing Orica Australia Pty Ltd to continue its operations without the immediate threat of the proposed industrial action.

Australian Workers' Union, The v Orica Australia Pty Ltd T/A Orica

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established