Australian Workers' Union v Monroe Australia Pty Ltd T/A Monroe

[2022] FWC 2413

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Monroe Australia Pty Ltd T/A Monroe

(B2022/1358)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 SEPTEMBER 2022

Proposed protected action ballot of employees of Monroe Australia Pty Ltd T/A Monroe.

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 Monroe Australia Pty Ltd T/A Monroe. (Respondent).

On 12 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 Nathan Crack 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 PR745706.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (Applicant) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of Monroe Australia Pty Ltd T/A Monroe (Respondent). The matter was brought before Deputy President Clancy of the Fair Work Commission in Melbourne on 12 September 2022. The Respondent did not object to the application, leading to the decision being made on the papers without a formal hearing. The Applicant sought the ballot to potentially authorise protected actions, such as strikes or stoppages, due to ongoing difficulties in reaching an agreement with the Respondent.

The primary legal issue before the court was whether the conditions set out in section 443(1) of the Fair Work Act had been fulfilled, which are prerequisites for a protected action ballot. Specifically, the court needed to ascertain if there was a notification time for the proposed agreement and whether the Applicant had genuinely attempted to reach an agreement with the Respondent. The Applicant provided a declaration from Mr Nathan Crack, detailing the bargaining steps taken and affirming the genuine efforts to reach an agreement.

Deputy President Clancy examined the material presented, including the declaration by Mr Crack, and found that the requirements of section 443(1) of the Fair Work Act had indeed been met. The declaration provided sufficient evidence of the Union's good faith negotiations and the existence of a notification period for the proposed agreement. Consequently, Deputy President Clancy was satisfied that the necessary conditions for granting the ballot order were fulfilled.

In light of the findings, Deputy President Clancy issued an order in PR745706, permitting the Applicant to proceed with the protected action ballot. This decision allowed the employees to potentially take protected actions as outlined in their application, subject to the legal framework provided by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established