Australian Workers' Union v Weathertex Pty Limited Summary

[2024] FWC 2057

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Australian Workers' Union
v

Weathertex Pty Limited

(B2024/971)

DEPUTY PRESIDENT HAMPTON

ADELAIDE, 1 AUGUST 2024

Proposed protected action ballot of employees of Weathertex Pty Limited

This is an application by the Australian Workers’ Union (AWU or Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Weathertex Pty Limited (Weathertex or Employer).

I note that the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU)[1] have each made a separate application for a protected action ballot order in relation to the same proposed enterprise agreement.

On 1 August 2024, the Commission was advised that the Employer, in effect, 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 Tegan Drage, Organiser, setting out the steps taken by the AWU in bargaining with the Employer and that it has been, and is, genuinely trying to reach agreement with Weathertex, 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 Democratic Outcomes Pty Ltd (CiVS). CiVS has been approved as an eligible protected action ballot agent under s.468A of the Act and consequently is authorised to conduct the ballot.

For the purposes of s.443(3)(c) of the Act, the Commission has determined that the date by which voting is to close is 23 August 2024.[2] This also establishes the ballot period for the purpose of s.448A(2) of the Act.

An Order has been separately issued in PR777787.

This matter will be assigned to another Member of the Commission to conduct the s.448A compulsory conciliation conference along with the other related matters. That Member will issue an Order requiring the attendance of all bargaining representatives in the proposed enterprise agreement 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] Respectively, B2024/973 and B2024/974.

[2] This is, in effect, 15 working days from the making of the Order and was the period sought in the application.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application from the Australian Workers' Union (AWU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for employees of Weathertex Pty Limited. The AWU aimed to conduct a ballot to authorise protected industrial action due to ongoing disputes regarding an enterprise agreement. The application was filed in response to the union's assertion that it had been genuinely attempting to negotiate with the employer but had not reached an agreement.

The central legal issue for the Commission to determine was whether the AWU had met the statutory requirements to hold a protected action ballot. This involved verifying that the union had genuinely attempted to reach an agreement, that the notification period had been met, and that all procedural requirements under the Fair Work Act had been satisfied. The Commission also needed to decide on the timing of the ballot, ensuring it was conducted within the specified legal framework and within a reasonable period from the application date.

After reviewing the evidence, including the declaration by the AWU's Organiser, the Deputy President concluded that the union had fulfilled all necessary conditions to proceed with the ballot. The declaration detailed the union's efforts in bargaining and demonstrated its genuine attempt to reach an agreement with the employer. The Deputy President confirmed that the union had met the requirements under section 443(1) of the Act and authorised the ballot to be conducted by Democratic Outcomes Pty Ltd, an approved ballot agent. The closing date for voting was set for 23 August 2024, ensuring compliance with the statutory provisions.

The final orders included the authorisation of the protected action ballot to be conducted by the approved agent, with the closing date for voting set at 23 August 2024. Additionally, the matter was to be assigned to another Member of the Commission for a compulsory conciliation conference, ensuring all parties would be required to attend and engage in meaningful negotiations. Directions were also likely to be issued to ensure preparedness for the conference.

Australian Workers' Union v Weathertex Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established