Australian Workers' Union v Harsco Metals Australia Pty Ltd

[2023] FWC 1667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union

Harsco Metals Australia Pty Ltd

(B2023/685)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 10 JULY 2023

Proposed protected action ballot of employees of Harsco Metals Australia Pty Ltd

This is an application by the Australian Workers' Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, Harsco Metals Australia Pty Ltd (Harsco Metals or Respondent).

On 10 July 2023, the Commission 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 Swan, AWU Lead Organiser, setting out the steps taken by the AWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with Harsco Metals, 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) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (10 July 2023) has been established by this Commission.[1]

An order has been separately issued in PR764069.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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] 1This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Workers' Union (AWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Harsco Metals Australia Pty Ltd (Harsco Metals). The application was brought to facilitate a ballot among the employees regarding potential industrial action. The court was asked to decide if the AWU had satisfied the necessary prerequisites for a ballot as stipulated by section 443 of the Act.

The legal issues for the court to determine included whether the AWU had genuinely attempted to negotiate with Harsco Metals, if there was a notification period for the proposed agreement, and if all procedural requirements under the Act were met. The court also needed to consider the appropriate duration for the ballot period and the necessity of a conference under section 448A of the Act. The Respondent, Harsco Metals, did not object to the application, which simplified the court's decision-making process.

The Deputy President concluded that the AWU had fulfilled all the necessary conditions for a protected action ballot. The court was satisfied with the declaration by Mr David Swan, AWU Lead Organiser, which detailed the union's efforts in bargaining with Harsco Metals. The Deputy President determined that the notification period was in place and that the AWU had genuinely tried to reach an agreement with the Respondent. Consequently, the court ordered that the ballot be conducted by the Australian Electoral Commission within a period of 30 working days from the date of the order, 10 July 2023. Additionally, a separate order was issued to assign another Commission member to conduct the conference under section 448A, with directions likely to ensure that the parties are prepared for meaningful negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established