| [2024] FWC 1118 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Workers' Union
v
ASC Pty Ltd
(B2024/494)
| DEPUTY PRESIDENT HAMPTON | SYDNEY, 30 APRIL 2024 |
Proposed protected action ballot of employees of ASC Pty Ltd.
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 ASC Pty Ltd (ASC or Employer).
On 29 April 2024, the Commission was advised that the Employer did not object to the Application.
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 Simon Russell, Branch 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 ASC, 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 12 June 2024.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.
An Order has been separately issued in PR774344.
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] 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
<PR774345>
- AGLC
- Australian Workers' Union v ASC Pty Ltd [2024] FWC 1118
- Case
- [2024] FWC 1118
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Deputy President was whether the AWU had met all the statutory requirements to hold a protected action ballot. Specifically, the Commission had to determine if the notification period for the proposed agreement was correctly calculated, and if the AWU had genuinely tried to reach an agreement with ASC Pty Ltd. The Deputy President reviewed the declaration from Simon Russell, Branch Organiser of the AWU, which detailed the bargaining process and the union's efforts to negotiate.
Having considered the evidence, the Deputy President concluded that the AWU had satisfied all requirements under section 443(1) of the Act. The declaration from the Branch Organiser provided sufficient evidence that the AWU had genuinely tried to reach an agreement, and that a notification period was in place for the proposed agreement. Consequently, the Deputy President granted the application and ordered that the ballot be conducted by the Australian Electoral Commission. Voting was to close by 12 June 2024, effectively setting a 30 working-day ballot period. The matter will now proceed to a compulsory conciliation conference under section 448A of the Act, to be conducted by another member of the Commission.
This decision sets the stage for further negotiations between the AWU and ASC Pty Ltd, ensuring that the employees' rights and interests are properly represented in the process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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