Australian Workers' Union v Holcim (Australia) Pty Limited Summary

[2022] FWC 2507

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Holcim (Australia) Pty Limited

(B2022/1401)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 SEPTEMBER 2022

Proposed protected action ballot of employees of Holcim (Australia) Pty Limited.

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 Holcim (Australia) Pty Limited (Respondent).

On 19 September 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 Weissmann 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 PR745993.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, represented by Mr James Weissmann, made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Holcim (Australia) Pty Limited. The Respondent did not object to the application. The matter was determined on the papers without a hearing. The Union sought the order to facilitate a proposed protected action ballot of employees, which is a significant step in the process of negotiating a new enterprise agreement with the employer.

The key legal issue before the Deputy President was whether the application met the statutory requirements under section 437 of the Fair Work Act. This involved determining if there was a notification time in relation to the proposed agreement and whether the Union had genuinely tried to reach agreement with the Respondent. The Deputy President reviewed the declaration of Mr Weissmann, which detailed the Union's bargaining efforts and its commitment to reaching an agreement. The Deputy President was satisfied that the Union had met the requirements and that the application was properly made.

Given the Union's compliance with the statutory provisions and the lack of objection from the Respondent, the Deputy President granted the application for a protected action ballot order. This decision allows the Union to proceed with the ballot, facilitating further negotiation of the proposed enterprise agreement. The Deputy President noted that an order had been separately issued in PR745993 to formalise the decision.

The Fair Work Commission ordered that a ballot of the employees of Holcim (Australia) Pty Limited be conducted to determine if they support the proposed protected action. This order enables the Union to proceed with the ballot, ensuring that the process for negotiating the new enterprise agreement can continue.

Australian Workers' Union v Holcim (Australia) Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established