Australian Workers' Union v Gibson's Limited T/A Skretting Australia

[2023] FWC 72

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Gibson’s Limited T/A Skretting Australia

(B2023/18)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 JANUARY 2023

Proposed protected action ballot of employees of Gibson’s Limited Trading As Skretting Australia

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 Gibson's Limited T/A Skretting Australia (Respondent).

On 11 January 2023 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 David Meers 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 PR749560

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR749559

CaseChat Overview and Summary

The case of Australian Workers' Union v Gibson's Limited T/A Skretting Australia was brought before the Fair Work Commission under section 437 of the Fair Work Act 2009. The Australian Workers' Union, the applicant, sought a protected action ballot order concerning certain employees of Gibson's Limited T/A Skretting Australia, the respondent. The dispute centred around the union's proposed industrial action, which it sought to ballot its members about, in an effort to reach a resolution with the employer over certain terms and conditions of employment. On the date of the hearing, the respondent did not object to the union's application.

The primary legal issue before the Deputy President was whether the union had fulfilled the necessary conditions to conduct a protected action ballot. This required consideration of whether a notification time had passed and whether the union had genuinely attempted to negotiate with the employer, as stipulated by section 443(1) of the Fair Work Act. The union's declaration, provided by Mr David Meers, detailed the steps taken in bargaining and affirmed the union's genuine efforts to reach an agreement with the employer.

The Deputy President, Clancy, found that based on the documentation presented, including the union's declaration, there was indeed a notification time in relation to the proposed agreement and that the union had met the requirements of genuine negotiation. The respondent's lack of objection to the application also played a part in this decision. Consequently, the Deputy President determined that the matter could be resolved without the need for a hearing. The Deputy President issued an order allowing the protected action ballot to proceed.

The final order of the Deputy President was issued separately and was documented as PR749560. This order granted the union's application for a protected action ballot, reflecting the Deputy President's conclusion that the union had met the statutory requirements for such a ballot under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established