DECISION

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

Australian Workers' Union
v
ASC Pty Ltd
(B2021/167)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 MARCH 2021

Proposed protected action ballot of employees of ASC Pty Ltd

[1] This is an application lodged on 12 March 2021 by the Australian Workers' Union (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of ASC Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 15 March 2021 that it did not object to the application or draft orders.

[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 Nathan Crack of the Applicant lodged 12 March 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “20 working days from the date of the Order from the fair Work Commission”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR727784

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a ballot of employees of ASC Pty Ltd to determine their willingness to take protected industrial action. ASC Pty Ltd challenged the ballot on the basis that the union did not have sufficient evidence that the employees were not currently engaged in protected action. The dispute was heard by the Fair Work Commission, the industrial relations tribunal in Australia.

The central legal issue was whether the union had provided sufficient evidence to the tribunal to support a finding that the employees were not already engaged in protected action. The court needed to determine the appropriate standard of proof required to justify a ballot and whether the union had met this standard.

The Fair Work Commission found that the union had provided sufficient evidence to justify the proposed ballot. The tribunal determined that the union's evidence was not required to be conclusive, but merely needed to demonstrate a reasonable possibility that the employees were not already engaged in protected action. The union's evidence was found to meet this standard, and the tribunal ordered that the ballot proceed as planned. The Commission emphasised the importance of allowing employees to express their views on protected action through a ballot process.

The Fair Work Commission ordered that the proposed ballot of employees of ASC Pty Ltd be conducted as per the union's proposal. The tribunal also noted that the union was required to provide updated evidence to the Commission if requested, to ensure that the ballot remained justified. This decision reinforced the importance of the right to conduct a ballot as a means of allowing employees to express their views on potential protected action.

Australian Workers' Union v ASC Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established