Australian Workers' Union v Hexion Pty Ltd Summary

[2024] FWC 2782

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Hexion Pty Ltd

(B2024/1303)

COMMISSIONER FOX

MELBOURNE, 7 OCTOBER 2024

Proposed protected action ballot of employees of Hexion Pty Ltd.

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 Hexion Pty Ltd (Hexion or Employer).

On 4 October 2024, the Commission was advised that the Employer objected to the Application. I listed the matter for Hearing on 7 October 2024. At the commencement of the Hearing, the parties agreed that I would conduct a Conference. At the conclusion of the Conference, the Employer did not oppose the application, nor the terms of the proposed Order as amended during the Conference.

As the parties reached agreement on the terms of the proposed Order during the Conference, I have decided to determine the matter on the papers without the need to resume the Hearing.

On the basis of the material before me, including the declaration of Robert Nguyen, Organiser, 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 Hexion, 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 (AEC).

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 19 November 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 PR779996.

This matter will be assigned to a 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.

COMMISSIONER

Appearances:

L Aksu for the Applicant.
T Davey of MinterEllison for the Respondent.

Hearing details:

2024.
Melbourne (By Video using Teams):
7 October.

[1] This is, in effect, thirty (30) working days from the date of the Order.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for an order allowing a protected action ballot of certain employees of Hexion Pty Ltd. The employer, Hexion Pty Ltd, initially objected to the application but subsequently agreed to the terms of the proposed order during a conference with the Commission. The application sought to conduct the ballot to determine whether the employees were in favour of taking protected action, such as a strike or lockout, in the absence of a new enterprise agreement.

The legal issues before the Commission included whether the AWU had genuinely tried to reach an agreement with Hexion and whether all the requirements of section 443(1) of the Fair Work Act were met. The Commission needed to determine if the application met the statutory criteria and if the proposed ballot was necessary. Additionally, the Commission had to decide on the timing for the ballot, including the closing date for voting, which would also set the ballot period for the purposes of section 448A(2) of the Act.

Commissioner Fox reviewed the material presented, including the declaration from Robert Nguyen, an organiser of the AWU, confirming the union's efforts in bargaining with Hexion. The Commissioner concluded that the AWU had genuinely attempted to reach an agreement and that all statutory requirements were satisfied. Consequently, the application was approved, and an order was made for the Australian Electoral Commission to conduct the ballot. The Commission set the closing date for voting as 19 November 2024, which is 30 working days from the date of the order. The matter will proceed to a compulsory conciliation conference under section 448A of the Act, with further orders to ensure meaningful negotiations between the parties.

In summary, the Commission granted the AWU's application for a protected action ballot, setting the voting period to close on 19 November 2024. The decision facilitates the process for the employees to express their views on potential protected action, while also mandating further conciliation efforts between the AWU and Hexion.

Australian Workers' Union v Hexion Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established