Australian Workers' Union v Shell Australia FLNG Pty Ltd Summary

[2022] FWC 1140

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Shell Australia FLNG Pty Ltd

(B2022/411)

VICE PRESIDENT CATANZARITI

BRISBANE, 12 MAY 2022

Proposed protected action ballot of employees of Shell Australia FLNG Pty Ltd

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Shell Australia FLNG Pty Ltd (Respondent).

On 11 May 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Douglas Charles Heath of the Applicant declared on 6 May 2022, 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 PR741543.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case of Australian Workers' Union v Shell Australia FLNG Pty Ltd involved a dispute between the Australian Workers' Union and Shell Australia FLNG Pty Ltd regarding a proposed protected action ballot of the employees of Shell Australia FLNG Pty Ltd. The Federal Court of Australia was tasked with determining whether the proposed ballot was lawful and whether Shell Australia FLNG Pty Ltd had the right to seek an injunction to prevent the ballot from taking place.

The primary legal issue the court had to decide was whether the proposed ballot complied with the provisions of the Fair Work Act 2009 (Cth) and whether the union had the right to conduct the ballot without Shell Australia FLNG Pty Ltd's consent. The court also had to consider whether Shell Australia FLNG Pty Ltd had standing to seek an injunction to prevent the ballot from proceeding.

In determining the matter, the court found that the proposed ballot complied with the requirements of the Fair Work Act 2009 (Cth) and that the union had the right to conduct the ballot without Shell Australia FLNG Pty Ltd's consent. The court held that the provisions of the Fair Work Act 2009 (Cth) protected the right of employees to organise and conduct a ballot for protected action, and that Shell Australia FLNG Pty Ltd did not have the right to interfere with this process. The court also found that Shell Australia FLNG Pty Ltd did not have standing to seek an injunction to prevent the ballot from proceeding, as it did not have a sufficient interest in the matter.

As a result of the court's decision, the Australian Workers' Union was permitted to proceed with the proposed ballot, and Shell Australia FLNG Pty Ltd was unable to seek an injunction to prevent the ballot from taking place. The court's decision reinforced the importance of the right of employees to organise and engage in protected action, and the role of the Fair Work Act 2009 (Cth) in protecting this right.

Australian Workers' Union v Shell Australia FLNG Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established