DECISION

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

Australian Workers' Union, The
v
Recycling Industries Pty Ltd T/A Alex Fraser
(B2019/733)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 SEPTEMBER 2019

Proposed protected action ballot of employees of Recycling Industries Pty Ltd.

[1] 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 T/A Alex Fraser (Respondent).

[2] On 3 September 2019, 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 P 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 PR711980

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union was involved in a legal dispute with Recycling Industries Pty Ltd, trading as Alex Fraser, regarding a proposed ballot of employees for protected action. The case was heard in the Fair Work Commission of Australia. The Union sought to conduct a ballot of employees to organise protected industrial action, which Recycling Industries opposed on the grounds that the ballot was not adequately justified and did not comply with statutory requirements.

The primary legal issues before the Commission were whether the proposed ballot was necessary and reasonable under the Fair Work Act 2009 and whether it complied with the provisions of section 390 of the Act. The Commission needed to determine if the Union had provided sufficient justification for the ballot, particularly in relation to the nature and scope of the proposed action. Additionally, the Commission examined whether the ballot notice provided to employees contained all the required information as prescribed by the Act.

The Fair Work Commission found that the Union had not adequately justified the need for a ballot as required by the Fair Work Act. The Commission noted that the Union's application did not clearly demonstrate the specific issues or disputes that the proposed action would address, nor did it sufficiently explain why other methods of negotiation, such as further discussions or mediation, had not been effective. Furthermore, the Commission determined that the ballot notice did not comply with the statutory requirements, as it lacked certain necessary details. Consequently, the Commission rejected the Union's application to conduct the ballot.

As a result of the Commission's decision, the Australian Workers' Union was not permitted to proceed with the proposed ballot of employees for protected action against Recycling Industries Pty Ltd. This decision underscores the importance of providing a clear and justified basis for industrial action, as well as ensuring compliance with statutory requirements in relation to ballot notices.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established