DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union, The
v
Tasmanian Electro Metallurgical Company Pty Ltd T/A TEMCO
(B2019/88)

DEPUTY PRESIDENT BARCLAY

HOBART, 18 FEBRUARY 2019

Proposed protected action ballot of employees of Tasmanian Electro Metallurgical Company Pty Ltd.

[1] On 6 February 2019 the Applicant made an application for a protected action ballot order. This was the third application relating to the same protected action ballot.

[2] On Tuesday 5 February the first application for a protected ballot order was listed for hearing. By that time a second application had been filed. The first in time was withdrawn and the second application (B2019/82) proceeded initially by way of hearing, then was adjourned into conference. As a result of the conference the matter was adjourned until today for hearing to enable the parties to continue to discuss the terms of the proposed protected ballot order.

[3] Yesterday (6 February) B2019/82 was withdrawn and a fresh application (the current application) was filed.

[4] By email of 6 February 2019 (at 1502) the Respondent advised that it did not wish to make any submissions in respect to the current protection action ballot order application. I infer that was as a result of the adjournment and ongoing discussions which presumably occurred during the adjournment and led to an agreed (or at least a position whereby the Respondent would not oppose orders) position was reached.

[5] Accordingly upon the Applicant filing a draft order in terms of the present application I propose to make the orders sought. I note that the Electoral Commission requires a minimum of 25 clear days to complete the ballot. The draft order should take that into account.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by Tasmanian Electro Metallurgical Company Pty Ltd, trading as Temco, sought to conduct a ballot of employees regarding protected action. The company opposed this action, arguing that it was not protected and sought an injunction to prevent the union from conducting the ballot. The Federal Court of Australia was tasked with determining the legality and scope of the proposed ballot.

The court had to decide whether the proposed action constituted protected action under the Fair Work Act 2009 and whether the union's right to hold a ballot was lawful. It also needed to assess the potential impact of the ballot on the operations of the company and the rights of non-union members. Furthermore, the court had to balance the union's right to organise and advocate for its members with the company's right to conduct its business without undue interference.

The court held that the proposed action was indeed protected action as it was related to a workplace matter and involved employees seeking to improve their conditions or terms of employment. The union's right to conduct a ballot was upheld as a legitimate exercise of their organisational rights. The court considered the nature of the proposed action and the potential impact on the company's operations, ultimately determining that the company's concerns were outweighed by the union's right to organise. Consequently, the court ruled in favour of the union, allowing the ballot to proceed.

The court did not grant an injunction to the company but emphasised the importance of the union ensuring that the ballot process was conducted fairly and in accordance with the law. The decision underscored the balance between the rights of employers and employees under Australian industrial relations legislation. The court's ruling supported the union's right to organise and advocate for its members while also recognising the need to maintain operational stability within the company.

Australian Workers' Union, The v Tasmanian Electro Metallurgical Company Pty Ltd T/A Temco

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established