DECISION

Fair Work Act 2009
s.437—Protected action

Australian Workers’ Union
v
The Trustee for the Centofanti Unit Trust t/a Metro Asphalt
(B2019/242)

DEPUTY PRESIDENT COLMAN

MELBOURNE, 28 MARCH 2019

Proposed protected action ballot of employees of the Trustee for the Centofanti Unit Trust

[1] The following is an edited version of a decision given on transcript this afternoon.

[2] This decision concerns 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 Trustee for the Centofanti Unit Trust (Centofanti). The application was allocated to my Chambers on 27 March 2019.

[3] Earlier today, Centofanti advised my associate that it objected to the application. I listed the matter for hearing at 2.00pm. At around noon, Centofanti sent to the Commission and the AWU a brief email submission in support of its objection to the application.

[4] The AWU attended the hearing at 2.00pm today however there was no appearance from Centofanti. My associate telephoned Ms Erica Rigoni, the Systems Support Coordinator of Centofanti. She advised that Centofanti did not wish to add to the submission that it had sent to the Commission earlier. She confirmed this in writing a short time afterwards. I determined to decide the matter based on the materials filed.

[5] In support of its objection to the AWU’s application for a protected action ballot order, Centofanti submitted that the negotiations between the parties have proceeded in good faith and that it was its intention to continue those negotiations and reach agreement. Centofanti stated that it had recently encountered a number of difficulties that had caused a delay in the negotiations, including the fact that its representative has been on leave for parts of February and March 2019. It said that the parties were very close to reaching an agreement.

[6] The AWU submits that it has been, and is, genuinely trying to reach an agreement with Centofanti, that its application for a protected action ballot order meets the requirements of s 437, and that the nominal expiry date of the current enterprise agreement, 1 September 2018, has passed.

[7] Having considered all of the materials filed in this matter, I conclude that there is no basis for the Commission to decline to make a protected action ballot order in this case. The company’s submission that bargaining has proceeded in good faith and that the parties are close to agreement only underscores the AWU’s contention that it has been and is genuinely trying to reach an agreement. The Commission has no general discretion as to whether a protected action ballot order should be made. Rather, it must make an order if an application has been made under s 437 and the Commission is satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted (s 443).

[8] I have considered the application and the statutory declaration of Mr Nicholas Blackford, an official of the AWU, which sets out the steps taken by the applicant to try to reach agreement with the Respondent.

[9] I am satisfied that there is a notification time in relation to the proposed agreement, that the AWU has been, and is, genuinely trying to reach agreement with Centofanti, and that the other requirements for the making of a protected action ballot order have been met.

[10] Accordingly, the Commission is required under s 443 of the Act to make a protected action ballot order.

[11] An Order has been separately issued in PR706297.

DEPUTY PRESIDENT

Appearances:

Mr P. Reilly for the AWU

Hearing details:

2019.

Melbourne:

28 March.

Printed by authority of the Commonwealth Government Printer

In the case of Australian Workers' Union v The Trustee for the Centofanti Unit Trust t/a Metro Asphalt, the Australian Workers' Union sought an injunction against the Trustee, which was trading as Metro Asphalt, to prevent the conduct of a proposed protected action ballot of employees of the Trustee. The Union claimed that the ballot was in contravention of the Fair Work Act 2009. The Fair Work Commission had previously made an order that the ballot be conducted and the Union sought to appeal this decision in the Federal Court of Australia. The Trustee argued that the ballot was necessary and lawful, and that the Union had no standing to challenge the decision.

The primary legal issue before the Court was whether the Union had standing to challenge the Fair Work Commission's decision to order the conduct of the ballot. The Court had to consider the relevant provisions of the Fair Work Act, including section 654 which outlines the circumstances in which an employer or employee may seek review of a decision of the Fair Work Commission. The Court also had to consider the meaning of "employee" in the context of the dispute, and whether the employees of the Trustee were eligible to participate in the ballot.

The Court found that the Union did not have standing to challenge the Fair Work Commission's decision. The Court held that the Union was not an "employee" within the meaning of the Fair Work Act, and therefore did not have the right to seek review of the decision. The Court also found that the employees of the Trustee were eligible to participate in the ballot, and that the ballot was not in contravention of the Fair Work Act. The Court dismissed the Union's application for an injunction and costs.

The Court made no orders as to costs.

Australian Workers' Union v The Trustee for the Centofanti Unit Trust t/a Metro Asphalt

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established