Australian Workers' Union v Decmil Southern Pty Ltd T/A Decmil

[2022] FWC 1309

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Decmil Southern Pty Ltd T/A Decmil

(B2022/481)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 MAY 2022

Proposed protected action ballot of employees of Decmil Southern Pty Ltd T/A Decmil.

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 Decmil Southern Pty Ltd T/A Decmil (the Respondent).

On 25 May 2022, my Associate was advised that the Respondent 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 Mr James Weissman 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.

An order has been separately issued in PR742002.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of Decmil Southern Pty Ltd T/A Decmil. The application was made in response to ongoing negotiations between the AWU and the Respondent, aiming to reach an agreement. On 25 May 2022, the Respondent indicated it would not oppose the application, prompting the Deputy President to decide the matter based on the submitted documents without a hearing.

The legal issues before the court involved verifying if the AWU had genuinely attempted to negotiate with Decmil and whether the statutory notification period for the proposed agreement was appropriately observed. The AWU had to demonstrate it had been earnestly seeking to reach an agreement with the Respondent, as required by section 443(1) of the Fair Work Act 2009. Additionally, the court had to confirm that the notification time for the proposed agreement was met.

The Deputy President concluded that the AWU had indeed been genuinely trying to reach an agreement with Decmil, as evidenced by the declaration of Mr James Weissman. The declaration detailed the steps taken in the bargaining process, which met the statutory requirements. Furthermore, the notification period for the proposed agreement was appropriately observed. Based on these findings, the Deputy President was satisfied that the prerequisites for granting the protected action ballot order were fulfilled.

Consequently, the Deputy President issued an order in PR742002, allowing the protected action ballot to proceed as requested by the AWU. The court's decision was made on the merits of the application and the evidence presented, ensuring the legal standards set by the Fair Work Act were met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established