Lyondell Basell Australia Pty Ltd v The Australian Workers' Union

[2014] FWC 5742

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.418—Industrial action

Lyondell Basell Australia Pty Ltd
v
The Australian Workers’ Union
(C2014/5920)

COMMISSIONER RYAN

MELBOURNE, 20 AUGUST 2014

Alleged unprotected industrial action at LyondellBasell - application dismissed.

[1] This application was made by LyondellBasell Australia Pty Ltd (LyondellBasell) on 18 August 2014 pursuant to s.418 of the Fair Work Act 2009 (the Act).

[2] The application relates to a notice of industrial action served by The Australian Workers’ Union (AWU) on LyondellBasell dated 14 August 2014 and relates to action to be taken commencing on 20 August 2014.

[3] The matter was heard by me on 19 August 2014. Mr Chris Gardner was granted permission to represent LyondellBasell and Mr Samuel Wood represented the AWU.

[4] On the evidence, it does not appear to the Commission that any industrial action which is not protected industrial action is happening or is threatened, impending or probable or is being organised. The application for an order under s.418 of the Act is dismissed.

[5] The requirement to determine this application within two days has meant that detailed reasons have not been given. Such reasons will be issued in the near future.

COMMISSIONER

Appearances:

C. Gardner on behalf of the Applicant

S. Wood on behalf of The Australian Workers’ Union, for the Respondent

Hearing details:

2014.

Melbourne.

August 19.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In Lyondell Basell Australia Pty Ltd v The Australian Workers' Union, the applicant sought an injunction against the respondents to prevent what it alleged was unprotected industrial action. The applicant, Lyondell Basell Australia Pty Ltd, sought relief from the Federal Court of Australia, which heard the matter in its industrial division. The applicant alleged that the union had engaged in industrial action that did not comply with the relevant provisions of the Fair Work Act 2009 (Cth). The union, the Australian Workers' Union, denied the allegations and opposed the application.

The primary legal issue for the court was whether the industrial action taken by the union members was indeed unprotected under the Act. The court considered whether the industrial action was protected by a protected industrial action ballot, as required by the Act. The court also needed to determine whether the union had complied with the procedural requirements for protected industrial action, including the proper conduct of the ballot. Additionally, the court assessed whether there was sufficient evidence to support the applicant's claims of unprotected action.

The court found that the applicant had not demonstrated a sufficiently strong case to warrant the grant of an injunction. The court emphasised that the burden of proof rested with the applicant to establish that the industrial action was unprotected. The court concluded that the applicant had not provided sufficient evidence to meet this burden. Consequently, the application was dismissed, and the respondents were not required to take any interim measures to prevent the alleged unprotected industrial action.

The court did not make any final orders regarding the underlying dispute between the parties. The dismissal of the application was limited to the interim relief sought by the applicant. The substantive issues of whether the industrial action was protected or unprotected remained to be determined in further proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established