Australian Workers' Union v TAD Pty Ltd

[2023] FWC 1679

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

TAD Pty Ltd

(B2023/694)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 12 JULY 2023

Proposed protected action ballot of employees of TAD Pty Ltd

This is an application by the Australian Workers' Union (AWU) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Respondent, TAD Pty Ltd (TAD or Respondent).

On 12 July 2023, the Commission 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 Fez Riches, AWU Organiser, setting out the steps taken by the AWU in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with TAD, 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 the Australian Electoral Commission. For the purposes of s.443(3)(c) and s.448A(2) of the Act, a ballot period of 30 working days from the date of the Order (12 July 2023) has been established by this Commission.[1] Noting that TAD expressed a preference for the ballot period to be made by reference to a particular day, I observe for clarification that in practice, the date by which voting in the protected action ballot is to close is 24 August 2023.

An order has been separately issued in PR764119.

This matter will be assigned to another Member of the Commission to conduct the s.448A conference and this Member will issue the Order requiring attendance 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] 1This is the minimum period required by the Australian Electoral Commission.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) lodged an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order concerning certain employees of TAD Pty Ltd (TAD). The application was made without objection from TAD, leading the Deputy President Hampton to decide on the matter based on the submitted documents. The FWC was required to determine whether the AWU had fulfilled the prerequisites for a protected action ballot as stipulated under section 443(1) of the Act, including the demonstration of genuine efforts to reach an agreement with TAD. Additionally, the Commission had to establish a ballot period that met the minimum requirements of the Australian Electoral Commission, as mandated by sections 443(3)(c) and 448A(2) of the Act.

The Deputy President Hampton found that the AWU had satisfied the conditions for the ballot, based on the declaration by Mr Fez Riches, an AWU Organiser, which outlined the union's bargaining efforts and its genuine attempts to reach an agreement with TAD. The Deputy President established a ballot period of 30 working days from the date of the order, which was 12 July 2023, thus setting 24 August 2023 as the closing date for voting in the protected action ballot. The Australian Electoral Commission was designated to conduct the ballot. Further, the matter was assigned to another FWC member for a section 448A conference, with directions expected to ensure the parties' readiness for meaningful negotiations.

The Fair Work Commission granted the AWU's application, issuing an order for a protected action ballot to be conducted by the Australian Electoral Commission. The ballot period was set for 30 working days from 12 July 2023, concluding on 24 August 2023. The Commission also assigned the matter to another member for a section 448A conference and issued separate orders to ensure the parties' attendance and readiness for negotiations. This decision ensures that the AWU can proceed with the ballot as per the legal requirements, facilitating potential protected actions if the employees vote in favour.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established