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

[2022] FWC 3036

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

Australian Workers’ Union
v

Qenos Pty Ltd T/A Qenos

(B2022/1723)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 NOVEMBER 2022

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

This is an application by the Australian Workers’ Union of Australia (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).

The Respondent initially advised my Chambers that it did not object to the protected action ballot order being made granted the Applicant would be willing to consent to an amendment to the notice period required for the taking of industrial action from 3 working days to 5 working days. In correspondence to my Chambers, the Applicant confirmed that it consented to an extension of the notice period required for the taking of industrial action from 3 working days to 5 working days.

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 Patrick Vincent Reilly 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 PR747953.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Australian Workers' Union v Qenos Pty Ltd T/A Qenos, the Fair Work Commission was asked to decide whether the Australian Workers' Union could proceed with a protected action ballot for certain employees of Qenos Pty Ltd. This case arose under section 437 of the Fair Work Act 2009, which pertains to the protection of certain industrial action. The Union sought to conduct a ballot, a process through which employees can express their support for potential industrial action, such as a strike. The dispute centred on whether the Union had genuinely attempted to negotiate with the employer, Qenos Pty Ltd, and if there were sufficient grounds for the proposed industrial action.

The legal issues before the Commission involved verifying whether the Union had complied with the notification requirements and had genuinely attempted to negotiate with the employer. Specifically, the Commission had to determine if there was a genuine dispute necessitating the ballot, if the Union had made a good faith attempt to reach an agreement, and if there were exceptional circumstances that justified extending the notice period for taking industrial action. The Union argued that it had made genuine efforts to negotiate and that exceptional circumstances warranted a longer notice period than the standard three working days.

The Deputy President of the Fair Work Commission, Clancy, concluded that the Union had indeed met the requirements under the Fair Work Act. The Union had provided evidence of its negotiation efforts and agreed to extend the notice period for industrial action to five working days, a proposal the employer did not object to. Given this agreement and the evidence presented, the Deputy President determined that the Union's actions were justified and that there were exceptional circumstances supporting the longer notice period. Consequently, the Commission granted the Union's application for a protected action ballot order, with the specified notice period extended to five working days.

In light of the decision, the Fair Work Commission issued an order allowing the Australian Workers' Union to proceed with the protected action ballot for the employees of Qenos Pty Ltd, under the conditions set forth in the decision. This included the extension of the notice period to five working days, reflecting the agreement between the parties and the findings of the Commission.

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