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
(B2017/128)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 FEBRUARY 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 T/A Orica (the Respondent).

[2] On 7 February 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 PR590110.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought a case against Orica Australia Pty Ltd trading as Orica, contesting a proposed industrial action ballot. The union sought to organise a ballot among Orica's employees to determine support for protected action, such as a strike. Orica challenged the union's right to conduct the ballot, raising concerns about procedural fairness and the union's authority to represent the employees. The Fair Work Commission heard the matter, tasked with determining whether the union was entitled to conduct the ballot and whether Orica had valid grounds to oppose it.

The central legal issue before the Commission was whether the union possessed the requisite authority and had followed appropriate procedures to call for a ballot of Orica's employees. The Commission had to consider the union's legitimacy as a representative body and whether it had followed the correct process under the Fair Work Act. Additionally, Orica argued that the proposed ballot was flawed in its design and execution, potentially impacting employee rights and procedural fairness. The Commission also needed to weigh Orica's contentions regarding the potential for industrial action to cause harm to the company and its operations.

In its decision, the Commission examined the union's standing and the procedural fairness of the proposed ballot. It found that the union had the requisite authority to call for a ballot and that the process adhered to the statutory requirements. The Commission concluded that Orica had not provided sufficient evidence to warrant a prohibition of the ballot. It held that the union's procedural steps were appropriate and that the proposed action was lawful. Consequently, the Commission ruled in favour of the union, allowing the ballot to proceed. The decision underscored the importance of following legal processes for both union actions and employer responses, ensuring that the rights of employees and employers are balanced.

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