Australian Workers' Union v Capral Limited Summary

[2024] FWC 97

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Capral Limited

(B2024/26)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 12 JANUARY 2024

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

On 11 January 2024, the Commission was advised that Capral, in effect, 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 Mr James Downie on behalf of the AWU, 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 Capral, 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. 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 26 February 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 PR770206.

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 involved 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] The Respondent raised an inconsistency in Item 11 of Mr James Downie’s declaration, in relation to the outstanding claims discussed at the meeting on 6 December 2023.

[2] This is, in effect, 30 working days from the making of the Order, which is the period required by the Australian Electoral Commission to conduct a ballot.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Capral Limited. The AWU sought to conduct a ballot to authorize protected industrial action in the context of negotiations over an enterprise agreement. Capral Limited did not object to the application, and the matter proceeded on the papers without a hearing. The Deputy President, Wright, determined the application on the basis of the evidence presented by the AWU, including the declaration of Mr James Downie, which outlined the union's efforts to reach an agreement with Capral. The Deputy President found that all requirements under the Fair Work Act 2009 had been met for a protected action ballot order.

The primary legal issue before the Deputy President was whether the AWU had satisfied the conditions set out in section 443 of the Fair Work Act to conduct a protected action ballot. This involved confirming that there was a notification time for the proposed agreement and that the union had genuinely attempted to reach an agreement with Capral. Additionally, the Deputy President needed to determine an appropriate closing date for the ballot to allow sufficient time for the Australian Electoral Commission to conduct the voting process. The Deputy President resolved these issues by confirming the AWU's compliance with the Act and setting a ballot closing date of 26 February 2024.

The Deputy President was satisfied that the AWU had fulfilled the necessary conditions for a protected action ballot. The evidence demonstrated that the union had genuinely attempted to reach an agreement with Capral and that there was a notification time for the proposed agreement. The Deputy President also set the ballot closing date, ensuring the Australian Electoral Commission had adequate time to conduct the voting process. Consequently, the Deputy President granted the AWU's application for a protected action ballot order and directed that the ballot period would close on 26 February 2024. This decision facilitated the next steps in the bargaining process, including a compulsory conciliation conference to be conducted by another member of the Commission.

The orders issued by the Deputy President included the granting of the AWU's application for a protected action ballot order, setting the closing date for the ballot as 26 February 2024, and assigning the matter to another member of the Commission for a compulsory conciliation conference. Directions were also to be issued to ensure that the parties attended the conference prepared for meaningful negotiations. These orders aimed to advance the bargaining process and facilitate a resolution to the ongoing negotiations over the enterprise agreement.

Australian Workers' Union v Capral Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established