Australian Workers' Union, The v R.I.G. Installations (Newcastle) Pty Limited

[2018] FWC 7013

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The

R.I.G. Installations (Newcastle) Pty Limited

(B2018/1057)

Deputy President Gostencnik

MELBOURNE, 15 NOVEMBER 2018

Proposed protected action ballot of employees of R.I.G. Installations (Newcastle) Pty Limited.

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 R.I.G. Installations (Newcastle) Pty Limited (Respondent).

On 15 November 2018, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr P O’Brien 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 PR702338.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against R.I.G. Installations (Newcastle) Pty Limited, seeking an order that the employer comply with a request to hold a ballot of its employees to determine whether they would support protected action. The Fair Work Commission heard the matter, as it involved an industrial dispute under the Fair Work Act 2009. The dispute arose when the union requested the employer to conduct a ballot of its employees regarding potential protected industrial action. The employer contested the union's request, leading to the union's application for an order compelling the employer to comply.

The central legal issues revolved around the employer's obligations under the Fair Work Act in relation to holding a ballot and the procedural requirements for such a ballot. The commission had to determine whether the union's request was valid and whether the employer had any legitimate grounds to refuse it. The union argued that the request was properly made and that the employer had no basis to deny it. Conversely, the employer contended that the request was not in accordance with the statutory requirements or was otherwise invalid.

In considering these issues, the commission found that the union's request was properly made and that the employer had no valid reason to refuse it. The commission emphasised the importance of allowing employees to express their views on protected industrial action through a ballot. It held that the employer's refusal to conduct the ballot was unreasonable and contrary to the statutory provisions. Consequently, the commission ordered the employer to comply with the union's request and hold the ballot as requested. The commission's decision underscored the need for employers to adhere to their obligations under the Fair Work Act and respect the rights of employees to engage in protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established