Australian Workers' Union v Innofield Services Pty Ltd

[2022] FWC 2783

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union

Innofield Services Pty Ltd

(B2022/1564)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 18 OCTOBER 2022

Proposed protected action ballot of employees of Innofield Services Pty Ltd.

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 Innofield Services Pty Ltd (Respondent).

On 17 October 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 Warren Francis Jones 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 PR746917.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for a protected action ballot order in relation to employees of Innofield Services Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The AWU sought to conduct a ballot to determine whether the employees were willing to take industrial action due to unresolved disputes with the employer. Innofield Services Pty Ltd did not object to the application, leading the Deputy President to determine the matter without a hearing.

The legal issues before the court were whether the AWU had genuinely attempted to negotiate with Innofield Services Pty Ltd and whether the notification time for the proposed agreement had elapsed. Under section 437 of the Fair Work Act, the AWU could apply for a protected action ballot order if it could demonstrate that it had been genuinely attempting to reach an agreement with the employer and that the notification time for the proposed agreement had passed. The AWU needed to provide evidence of its negotiation efforts and the time elapsed since the notification.

The Deputy President found that the AWU had genuinely attempted to reach an agreement with Innofield Services Pty Ltd, as evidenced by the declaration of Mr Warren Francis Jones. Furthermore, the court was satisfied that the notification time for the proposed agreement had passed, fulfilling the requirements of section 443(1) of the Fair Work Act. Given these findings, the Deputy President granted the AWU's application for a protected action ballot order. A separate order was issued in PR746917.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established