DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union
v
Alex Fraser Asphalt Pty Ltd T/A Alex Fraser
(B2021/281)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 APRIL 2021

Proposed protected action ballot of employees of Alex Fraser Asphalt 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 Alex Fraser Asphalt Pty Ltd (Respondent).

[2] On 22 April 2021, my Associate was advised that the Respondent did not have any statutory objections 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 declaration of Mr Rory Mackintosh 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 PR728933.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that Alex Fraser Asphalt Pty Ltd had breached its obligations under the Fair Work Act 2009 (Cth) by refusing to allow a ballot of employees to proceed. The company opposed the application, arguing that the ballot was invalid as it did not comply with the Act's requirements. The matter was heard in the Federal Circuit Court of Australia.

The primary legal issue was whether the union's ballot complied with the Act, specifically sections 394 and 411. These sections detail the process for protected action ballots, including the requirement that the ballot be in writing and contain certain prescribed particulars. The court had to determine whether the ballot met these criteria and whether the company's refusal to allow the ballot was justified. Additionally, the court considered whether the union's actions were reasonable in all the circumstances.

The court found that the union's ballot did not contain all the prescribed particulars required by section 394(2) of the Act. While the ballot was in writing and included many of the necessary details, it omitted the specific section of the Act under which the ballot was being conducted. This omission was fatal to the ballot's validity. The court also noted that the company's refusal to allow the ballot was not unreasonable, given the ballot's non-compliance with the Act. Therefore, the union's application for a declaration that the company had breached its obligations was dismissed.

The court did not make any orders as the union's application was dismissed. The union's attempt to proceed with the ballot without full compliance with the Act's requirements was unsuccessful.

Australian Workers' Union v Alex Fraser Asphalt Pty Ltd T/A Alex Fraser

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established