Australian Workers' Union v Qenos Pty Ltd T/A Qenos Summary

[2022] FWC 2163

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Qenos Pty Ltd T/A Qenos

(B2022/1225)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 AUGUST 2022

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

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 Qenos Pty Ltd T/A Qenos (the Respondent).

On 15 August 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 David Joseph Swan 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. I am also satisfied that there are exceptional circumstances justifying the period of written notice referred to in s.414(2)(a) of the Act being longer than 3 working days and that I should exercise the discretionary power in s.443(5) of the Act and specify a period of 5 working days.

An order has been separately issued in PR744809.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of Qenos Pty Ltd T/A Qenos (Qenos). The application aimed to determine the procedural aspects of the proposed industrial action, including the notification period and the criteria for a ballot. The Fair Work Commission (FWC) was tasked with deciding whether the requirements for a protected action ballot were satisfied and if any exceptional circumstances warranted an extended notice period.

The legal issues central to the decision included whether the notification time for the proposed agreement was properly calculated, whether the AWU had genuinely attempted to reach an agreement with Qenos, and if there were exceptional circumstances that justified extending the notice period beyond the standard three working days as specified in section 414(2)(a) of the Act. The FWC also needed to determine if the discretionary power under section 443(5) of the Act should be exercised to specify a different notice period.

In reaching its decision, the Deputy President of the FWC considered the declaration from Mr David Joseph Swan of the AWU, which outlined the bargaining steps taken and confirmed the union's genuine efforts to reach an agreement. The Deputy President found that the AWU had satisfied the notification time requirement and had genuinely tried to reach an agreement with Qenos. Additionally, the Deputy President identified exceptional circumstances that justified extending the notice period to five working days. Consequently, the application was granted, and an order was issued to allow the specified notice period for the proposed industrial action.

The final orders included the approval of the protected action ballot order and the specification of a five-working-day notice period for the proposed agreement. This decision aimed to ensure that the employees were adequately informed and had the opportunity to participate in the decision-making process regarding the proposed industrial action.

Australian Workers' Union v Qenos Pty Ltd T/A Qenos

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established