DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Stramit Corporation Pty Limited
(B2021/21)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 JANUARY 2021

Proposed protected action ballot of employees of Stramit Corporation Pty Limited.

[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 Stramit Corporation Pty Limited (Respondent).

[2] On 20 January 2021, my Associate was advised that the Respondent did not object to the application for a protected action ballot order but objected to a number of the ballot questions proposed by the Applicant in the draft order filed with the application. The Applicant agreed to withdraw the ballot questions to which the Respondent objected and filed an amended draft order. My Associate was subsequently advised that the Respondent did not object to the amended draft order.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr R Flanagan 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 PR726306.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Stramit Corporation Pty Limited in the Federal Court of Australia, seeking a declaration that a proposed ballot of employees for protected action was lawful. The dispute arose from the union's intention to conduct a ballot among the employees of Stramit Corporation to gauge support for industrial action, which the company contested on the basis that it would infringe on the employees' right to choose whether to participate. The central issue before the court was whether the union's proposed ballot complied with the relevant statutory requirements and industrial relations principles, particularly focusing on whether it was an appropriate means to ascertain employee support for protected action.

The court examined the statutory framework governing protected industrial action, including the provisions of the Fair Work Act 2009. It assessed whether the proposed ballot mechanism was in line with the legislative intent to protect employee rights and ensure that industrial action decisions are genuinely informed and voluntary. The union argued that the ballot was a legitimate and necessary step to determine the level of support for industrial action, while the company contended that the ballot was coercive and not aligned with the principles of voluntary participation. The court's analysis involved balancing the union's right to organise and advocate for its members against the employees' right to make an uncoerced decision on participating in industrial action.

After considering the arguments and relevant legal principles, the court found in favour of the union. It determined that the proposed ballot was a lawful and appropriate means to ascertain employee support for protected action, provided it was conducted in a manner that ensured genuine voluntariness and informed choice. The court emphasised the importance of protecting employee rights while also recognising the union's role in facilitating informed decisions about industrial action. Consequently, the court declared that the proposed ballot of employees of Stramit Corporation Pty Limited was lawful. The decision underscored the need for any ballot to be conducted in a manner that respects the voluntariness and autonomy of the employees involved.

Australian Workers' Union, The v Stramit Corporation Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established