| [2023] FWC 1690 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.437 - Application for a protected action ballot order
Australian Workers' Union
v
M&B Civil Pty Ltd
(B2023/699)
| DEPUTY PRESIDENT HAMPTON | ADELAIDE, 13 JULY 2023 |
Proposed protected action ballot of employees of M&B Civil Pty Ltd
This is an application by the Australian Workers' Union SA Branch (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, M&B Civil Pty Ltd (M&B Civil or Respondent).
On 13 July 2023, the Commission was advised that the Respondent did not take any particular position on 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 Simon Russell, AWU Industrial Officer, setting out the steps taken by the AWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with M&B Civil, 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. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (13 July 2023) has been established by this Commission.[1]
An order has been separately issued in PR764176.
This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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 the minimum period required by the Australian Electoral Commission.
Printed by authority of the Commonwealth Government Printer
<PR764177>
- AGLC
- Australian Workers' Union v M&B Civil Pty Ltd [2023] FWC 1690
- Case
- [2023] FWC 1690
- Decision Date
CaseChat Overview and Summary
The key legal issue before the court was whether the AWU had satisfied all the statutory requirements to proceed with the protected action ballot. This involved verifying if the union had genuinely tried to reach an agreement with the employer and if the notification time for the proposed agreement had been met. Additionally, the court needed to determine if the ballot period established was adequate.
In reaching its decision, the Deputy President Hampton examined the declaration of Mr Simon Russell, the AWU Industrial Officer, which detailed the union's bargaining efforts and its genuine attempts to reach an agreement with M&B Civil. The court found that all requirements under section 443(1) of the Act were met. The Deputy President Hampton also set a ballot period of 30 working days from the date of the order, 13 July 2023, which was the minimum period required by the Australian Electoral Commission. Consequently, the court issued an order permitting the ballot to proceed.
The final orders issued by the Deputy President Hampton mandated the conduct of the protected action ballot by the Australian Electoral Commission within the specified 30 working day period. The matter was also assigned to another member of the Commission to conduct the section 448A conference, with directions to be issued to ensure that the parties attended ready to engage in meaningful negotiations.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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