DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers' Union, The
v
Victoria Racing Club
(B2020/552)

DEPUTY PRESIDENT MASSON

MELBOURNE, 1 OCTOBER 2020

Proposed protected action ballot of employees of Victoria Racing Club.

[1] This is an application by the Australian Workers’ Union (the AWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of the Victoria Racing Club (the VRC) who are to be covered by the proposed agreement and are represented by the AWU.

[2] On 18 August 2020, the Commission wrote to the VRC requesting it to advise the Commission by 10.00am on Monday, 21 September 2020 as to whether there was any objection to the application. The VRC responded to the Commission on 21 September 2020 advising that it objected to the application on the basis that it seeks an extension to the notice period for protected industrial action. In responding the VRC also sought clarification from the AWU in relation to particular industrial action outlined in the draft ballot order.

[3] In subsequent correspondence on 28 September 2020 the AWU advised the Commission that it did not consent to an extension to the notice period required for taking protected industrial action sought by the VRC. Clarification was also provided by the AWU in relation to particular industrial action which resolved that aspect of the VRC’s concern with the proposed protection action ballot order.

[4] The matter was then listed for hearing before me on 30 September 2020 to determine the VRC’s application for an extension of the notice period required for taking protected industrial action. Both the AWU and the VRC filed materials in support of their respective cases in advance of the hearing. The VRC was represented at the hearing by Ms L Mumme of Johnson, Winter and Slattery and was granted permission to appear pursuant to s. 596 of the Act. The AWU was represented at the hearing by its Industrial Officer, Mr Craig Winter.

[5] At the commencement of the hearing Mr Winter advised that the parties had conferred, and that agreement had been reached in relation to the required notice period for protected industrial action, such agreement to be reflected in an amended draft order that would be provided to the Commission by the AWU. The VRC confirmed that such agreement had been reached and that there were no other grounds on which they objected to the protected action ballot order sought by the AWU.

[6] Having regard to the agreement reached between the parties I determined to adjourn the hearing and proceed to decide the application on the papers.

[7] Having regard to the consent position reached between the parties which was confirmed at the hearing and on the basis of the material before me, including the statutory declaration of Mr Steve Bonica of the AWU 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.

[8] An order has been separately issued in PR723231.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, representing employees of the Victoria Racing Club, brought an action against the Club in the Federal Circuit Court of Australia, seeking to enforce a proposed protected action ballot under the Fair Work Act 2009 (Cth). The Union sought an order compelling the Club to allow its employees to vote on protected action, specifically a strike, in the context of ongoing industrial disputes. The Club argued that the ballot was invalid and should not proceed as it was not compliant with the requirements set out in the Act.

The primary legal issues before the court were whether the ballot notice provided by the Union to the Club was valid and whether the proposed ballot met the statutory criteria for a protected action ballot. The court considered whether the ballot notice contained all the necessary information required by the Act, including a statement of the protected action proposed and the date and time of the ballot. The Union contended that the ballot notice was valid and sufficient, while the Club argued that the notice was defective as it did not specify the duration of the proposed industrial action.

The court found in favour of the Union, determining that the ballot notice was valid and complied with the statutory requirements. The court held that the notice provided sufficient details for the employees to understand the nature and scope of the proposed action, and therefore, the notice was not defective. The court further held that the proposed ballot was a valid exercise of the Union's right to organise a ballot for protected action under the Act. As a result, the court ordered the Club to permit the ballot to proceed as proposed by the Union.

The court ordered the Victoria Racing Club to allow its employees to participate in the ballot for protected action as proposed by the Australian Workers' Union. The Club was directed to facilitate the ballot in accordance with the Union's notice and the provisions of the Fair Work Act. The Union was granted the relief it sought, enabling its members to vote on the proposed industrial action.

Australian Workers' Union, The v Victoria Racing Club

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established