Australian Workers' Union v Air Liquide Australia Limited

[2024] FWC 920

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Air Liquide Australia Limited

(B2024/424)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 APRIL 2024

Proposed protected action ballot of employees of Air Liquide Australia Limited

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Air Liquide Australia Limited (Air Liquide or Employer).

On 9 April 2024, the Commission was advised that the Employer did not object to the Application.[1]

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

On the basis of the material before me, including the declaration of David Swan, Lead Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Air Liquide, I am satisfied that there is a notification time in relation to the proposed agreement and that all of the requirements in s.443(1) of the Act have been met.

The ballot is to be conducted by the Australian Electoral Commission (AEC).

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 23 May 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in 773348.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference. That Member will issue an Order requiring the attendance of all bargaining representatives for the proposed enterprise agreement at the conference. It is likely that Directions will also be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

DEPUTY PRESIDENT

[1] As amended to reflect the correct name of the Employer.

[2] This is, in effect, thirty (30) working days from the date of the Order, as sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission has granted an application by the Australian Workers' Union (AWU) for a protected action ballot order concerning certain employees of Air Liquide Australia Limited. The application was made under section 437 of the Fair Work Act 2009, seeking to organise a ballot for the employees to vote on proposed protected action. Notably, Air Liquide did not object to the application, allowing the Deputy President to proceed with the determination without a hearing. The matter was resolved based on the written submissions and evidence provided, including a declaration from David Swan, the Lead Organiser for the AWU, which detailed the union's efforts to negotiate with Air Liquide and affirmed the union's genuine attempts to reach an agreement.

The legal issues before the Commission involved verifying whether the AWU had met the statutory requirements for a protected action ballot under the Fair Work Act. Specifically, the Commission had to ascertain if there was a notification period for the proposed agreement, and if all prerequisites outlined in section 443(1) of the Act were satisfied. The evidence presented indicated that the AWU had adhered to the necessary procedures and was genuinely engaged in bargaining, leading to the conclusion that all conditions for the ballot were met. The Australian Electoral Commission (AEC) was appointed to conduct the ballot, with a closing date for voting set at 23 May 2024.

The Deputy President issued an order granting the application, specifying that the AEC would conduct the ballot by the determined closing date. The Commission also scheduled a compulsory conciliation conference under section 448A of the Act, to be overseen by another member, with an aim to facilitate meaningful negotiations between the parties. This decision underscores the Commission's role in ensuring that the processes for industrial action are legally compliant and that the rights of both employers and employees are protected throughout the bargaining process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established