Australian Workers' Union v BlueScope Steel Limited

[2024] FWC 3266

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

BlueScope Steel Limited

(B2024/1544)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 NOVEMBER 2024

Proposed protected action ballot of employees of BlueScope Steel 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 BlueScope Steel Limited (BlueScope or Employer).

On 25 November 2024, the Commission was advised that the Employer, in effect, did not object to the Application. There was further dialogue between the parties confirming this was the case.

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 Patrick Reilly, Lead Industrial Officer, 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 BlueScope, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 10 December 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 PR781627.

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 in 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, 10 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Australian Workers’ Union for a protected action ballot order concerning certain employees of BlueScope Steel Limited. The application was made under section 437 of the Fair Work Act 2009, with the union seeking to conduct a ballot to authorise protected industrial action. BlueScope did not object to the application, and the Commission determined the matter based on the submitted documentation without a hearing.

The central legal issue before the Commission was whether the union had satisfied the statutory requirements for a protected action ballot. This involved assessing whether the union had genuinely attempted to negotiate in good faith with the employer and if the prescribed notification period had elapsed. The Commission also needed to confirm that all other conditions under section 443 of the Act were fulfilled. Additionally, the Commission had to approve the ballot agent and set a closing date for the ballot.

The Deputy President concluded that the union had genuinely attempted to reach an agreement with the employer and had satisfied all the requirements of section 443 of the Act. The decision noted that Fair Vote Services Pty Ltd, the approved ballot agent, would conduct the ballot. The Commission set the closing date for voting as 10 December 2024, ensuring it aligned with the requested period. The matter was subsequently assigned for a compulsory conciliation conference to facilitate negotiations between the parties.

In conclusion, the Commission issued an order approving the ballot and mandated the conciliation conference. This decision ensures that the union can proceed with the ballot and that the parties are directed to attend the conference to negotiate the proposed enterprise agreement.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established