Australian Workers' Union, The v Recycling Industries Pty Ltd T/A Alex Fraser

[2022] FWC 1143

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union, The
v

Recycling Industries Pty Ltd T/A Alex Fraser

(B2022/430)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 MAY 2022

Proposed protected action ballot of employees of Recycling Industries Pty Ltd T/A Alex Fraser

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 Recycling Industries Pty Ltd trading as Alex Fraser (the Respondent).

On 12 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 James Weissmann 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 PR741554.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Recycling Industries Pty Ltd trading as Alex Fraser in the Fair Work Commission. The Union sought to conduct a protected action ballot among the employees of Recycling Industries, a move contested by the employer on various grounds. The central issue in the case was whether the Union had a legitimate basis to propose a protected action ballot and whether the employer's objections to the ballot were justified.

The Fair Work Commission examined whether the Union's proposed ballot met the legal requirements for protected action, including the necessity of a bona fide dispute of interest. Additionally, the court assessed the employer's contentions that the ballot was not conducted in good faith and would cause undue hardship to the business. The Commission considered the nature of the dispute, the Union's standing to conduct the ballot, and the employer's right to protect its business interests.

In its decision, the Commission found that the Union had a legitimate basis for proposing the ballot, as there was a bona fide dispute of interest between the Union and the employer. The Union's request for a ballot was not deemed to be in bad faith, and the employer's concerns about potential business hardship were not sufficient to override the employees' right to engage in protected action. Consequently, the Commission ruled in favour of the Union, allowing the ballot to proceed.

The Fair Work Commission ordered that the Australian Workers' Union could conduct the proposed protected action ballot among the employees of Recycling Industries Pty Ltd trading as Alex Fraser. This ruling affirmed the Union's right to organise and engage in protected action under the applicable industrial relations laws, subject to the conditions and protections afforded by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established