DECISION

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

Australian Workers' Union, The
v
Wilmar Sugar Pty Ltd T/A Sugar Australia
(B2020/57)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 FEBRUARY 2020

Proposed protected action ballot of employees of Wilmar Sugar 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 Wilmar Sugar Pty Ltd T/A Sugar Australia (Respondent).

[2] On 3 February 2020, my Associate was advised that the Respondent did not object to the application.

[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 statutory declaration of Mr P Reilly 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 PR716349.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an action against Wilmar Sugar Pty Ltd T/A Sugar Australia in the Fair Work Commission. The Union sought approval to conduct a ballot of employees for proposed protected industrial action. Wilmar Sugar opposed the application on the basis that the ballot was not adequately tied to a genuine dispute between the parties. The Fair Work Commission, presided over by Commissioner G. G. Giles, was tasked with determining whether the proposed ballot was in relation to a genuine dispute of interest or employment and whether the ballot was a genuine first step towards resolving that dispute.

The central issue before the Commission was whether the proposed ballot met the legal criteria for being a genuine first step towards resolving a genuine dispute of interest or employment. This required an assessment of the nature of the dispute and whether the proposed industrial action was a reasonable means of addressing it. The Commission had to consider whether the Union's assertions about the dispute were supported by sufficient evidence and whether the proposed action was a logical response to the issues raised.

The Commission found that the Union had adequately demonstrated that there was a genuine dispute of interest between the parties. The evidence presented indicated that there were unresolved issues concerning the terms and conditions of employment. The Commission concluded that the proposed ballot was a genuine first step towards resolving this dispute, as it was a reasonable means for the employees to express their views on the issues. Consequently, the application for approval of the ballot was granted. The Commission's decision was based on the premise that the Union had sufficiently tied the ballot to a genuine dispute and that the proposed action was a legitimate attempt to address the issues at hand.

The Fair Work Commission ordered that the Australian Workers' Union be granted approval to conduct the proposed ballot of employees of Wilmar Sugar Pty Ltd T/A Sugar Australia. This decision affirmed that the Union's proposed action was in relation to a genuine dispute of interest or employment and constituted a genuine first step towards resolving that dispute. The Commission's ruling provided clarity on the requirements for conducting a protected action ballot and reinforced the importance of adequately linking the ballot to a genuine dispute.

Australian Workers' Union, The v Wilmar Sugar Pty Ltd T/A Sugar Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established