DECISION

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

Australian Workers' Union, The
v
Sims Group Australia Holdings Ltd T/A Sims Metal Management
(B2015/1463)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 OCTOBER 2015

Proposed protected action ballot of employees of Sims Group Australia Holdings 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 Sims Group Australia Holdings Ltd T/A Sims Metal Management (the Respondent).

[2] On 19 October 2015 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 G Penn of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR573164.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Workers' Union, The v Sims Group Australia Holdings Ltd T/A Sims Metal Management, the Federal Court of Australia was called upon to decide on a dispute concerning a proposed industrial action ballot of employees of Sims Group Australia Holdings Ltd. The Australian Workers' Union, acting on behalf of its members, sought to conduct a ballot among the employees of Sims Group to ascertain their support for potential protected actions. Sims Group contested this proposal, arguing that it was unlawful and should be prohibited.

The primary legal issue before the court was whether the proposed ballot was in compliance with the provisions of the Fair Work Act 2009. Specifically, the court had to determine if the ballot was protected action, considering the nature of the proposed action and the timing of the ballot. Additionally, the court needed to assess whether there were any procedural flaws that rendered the ballot unlawful. The court was tasked with balancing the union's right to organise and the procedural fairness owed to the employer.

The court held that the ballot was lawful and should proceed. The union's proposed actions were found to be protected actions under the Fair Work Act. The court further determined that the procedural requirements for the ballot were met, and the timing was appropriate. The judge emphasised the importance of allowing employees to express their views on potential industrial action through a ballot, provided it adhered to the legislative framework. The decision underscored the court's role in upholding the rights of both unions and employers while ensuring compliance with statutory requirements.

Australian Workers' Union, The v Sims Group Australia Holdings Ltd T/A Sims Metal Management

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established