Australian Workers' Union v Huon Aquaculture Company Pty Ltd

[2025] FWC 503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Huon Aquaculture Company Pty Ltd

(B2025/266)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 20 FEBRUARY 2025

Proposed protected action ballot of employees of Huon Aquaculture Company 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 Huon Aquaculture Company Pty Ltd (Huon Aquaculture or Employer).

On 19 February 2025, the Commission was advised that the Employer, in effect, did not object to the Application as amended.

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 Robert Flanagan, Assistant Branch Secretary, 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 Huon Aquaculture, 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 Fair Vote Services Pty Ltd (Fair Vote). Fair Vote has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

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 11 March 2025.[1] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR784548.

This matter will be assigned to another 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.

DEPUTY PRESIDENT

[1] This is, in effect, 12 working days from the making of the Order and was the specific date sought in the application.

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 a protected action ballot order concerning certain employees of Huon Aquaculture Company Pty Ltd (Huon Aquaculture). The application was made on 19 February 2025, and the employer did not object to the application as amended. The Commission determined to resolve the matter based on the documents submitted, without the necessity of a hearing. The AWU's declaration, which detailed their efforts in negotiating with Huon Aquaculture and their continuous attempt to reach an agreement, satisfied the Commission that a notification period for the proposed agreement existed and that all requirements under section 443(1) of the Act were met.

The legal issues before the Commission involved verifying if the AWU met the statutory prerequisites to conduct a protected action ballot, including the necessity for a notification period and the steps taken to negotiate with the employer. The Commission needed to determine if the AWU had genuinely tried to reach an agreement with Huon Aquaculture and if all procedural requirements under the Act had been fulfilled. Additionally, the Commission had to establish the closing date for the voting period and the commencement of a compulsory conciliation conference under section 448A of the Act.

Upon reviewing the documents, the Deputy President concluded that the AWU had satisfied the statutory requirements and was entitled to proceed with the ballot. The Commission established the closing date for voting as 11 March 2025, effectively 12 working days from the issuance of the order. The matter was assigned to another member of the Commission to conduct a compulsory conciliation conference. The Commission issued an order requiring the attendance of all bargaining representatives in the proposed enterprise agreement at the conference, with potential directions to ensure meaningful negotiations took place.

The final orders included the approval of the ballot order by the AWU, setting the closing date for voting, and assigning the matter for a compulsory conciliation conference under section 448A of the Act. The Commission also issued an order in PR784548, ensuring that all relevant bargaining representatives attended the conference and were prepared for negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established