Australian Workers' Union v InfraBuild Wire Pty Ltd Summary

[2024] FWC 3152

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

InfraBuild Wire Pty Ltd

(B2024/1469)

DEPUTY PRESIDENT WRIGHT

SYDNEY, 14 NOVEMBER 2024

Proposed protected action ballot of employees of InfraBuild Wire 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 InfraBuild Wire Pty Ltd (InfraBuild or Employer).

On 14 November 2024, the Commission was advised that the Employer, in effect, 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 Ross Kenna, Lead 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 InfraBuild, 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 (FVS). FVS 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 28 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 PR781265.

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, 10 working days from the making of the Order and was the period 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 InfraBuild Wire Pty Ltd. The AWU sought to conduct a ballot to authorize industrial action. InfraBuild Wire Pty Ltd did not object to the application. The matter was decided by Deputy President Wright based on the submitted documents, which included a declaration from Ross Kenna, a Lead Organiser for the AWU, stating the union's efforts to reach an agreement with the employer.

The central legal issue before the Commission was whether the AWU had met the statutory requirements to hold a protected action ballot. These requirements include ensuring a notification period and demonstrating genuine efforts to reach an agreement with the employer. The Commission was required to determine if all conditions under section 443(1) of the Act were fulfilled, and whether the ballot agent, Fair Vote Services Pty Ltd, was eligible to conduct the ballot. The Deputy President found that all requirements were met, and the notification period was adequate.

Deputy President Wright concluded that the AWU had satisfied the legal prerequisites for a protected action ballot. The Commission determined that the voting period for the ballot would close on 28 November 2024, establishing this as the ballot period. The Commission also decided to assign the matter to another member for a compulsory conciliation conference under section 448A of the Act, with directions to ensure the parties are prepared for meaningful negotiations. The Deputy President issued an Order to conduct the ballot and another Order for the conciliation conference.

The final orders included the authorization of the protected action ballot, the setting of the voting period, and the scheduling of a compulsory conciliation conference to facilitate further negotiations between the AWU and InfraBuild Wire Pty Ltd.

Australian Workers' Union v InfraBuild Wire Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established