Australian Workers' Union v Precast Civil Industries Pty Ltd T/A Civilmart Summary

[2024] FWC 2107

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Precast Civil Industries Pty Ltd T/A Civilmart

(B2024/999)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 8 AUGUST 2024

Proposed protected action ballot of employees of Precast Civil Industries 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 Precast Civil Industries Pty Ltd trading as Civilmart (Civilmart or Employer).

On 7 August 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 James Newbold, 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 Civilmart, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS 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 19 August 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 PR778037.

The structure of the draft order has been amended to reflect the Fair Work Commission’s standard template.

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, 7 calendar days from the anticipated commencement of the ballot 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) has applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Precast Civil Industries Pty Ltd trading as Civilmart. The application was not opposed by Civilmart, and therefore the Deputy President Hampton decided to determine the matter on the basis of the papers without holding a hearing. The AWU has provided a declaration from its Organiser, James Newbold, stating that the union has been genuinely attempting to reach an agreement with Civilmart, and that the steps taken by the AWU in bargaining with Civilmart demonstrate that there is a notification time in relation to the proposed agreement. All requirements under section 443(1) of the Act have been satisfied.

The key legal issue before the Deputy President Hampton was whether the AWU had met the statutory requirements under section 437 of the Act to conduct a protected action ballot. The Deputy President Hampton considered the declaration from the AWU’s Organiser and concluded that the AWU had genuinely tried to reach an agreement with Civilmart and that there was a notification time for the proposed agreement. As such, the Deputy President Hampton was satisfied that the AWU had met the requirements of section 437 of the Act. The Deputy President Hampton also determined that the ballot would be conducted by Democratic Outcomes Pty Ltd (CiVS), an approved protected action ballot agent. The date by which voting was to close was set as 19 August 2024.

In conclusion, the Deputy President Hampton issued an Order granting the AWU’s application for a protected action ballot order. The ballot will be conducted by CiVS, and the voting period will close on 19 August 2024. The Fair Work Commission will also conduct a compulsory conciliation conference under section 448A of the Act, requiring the attendance of all bargaining representatives in the proposed enterprise agreement. Directions will likely be issued to ensure that the parties attend the conference ready to conduct meaningful negotiations.

Australian Workers' Union v Precast Civil Industries Pty Ltd T/A Civilmart

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established