Mrs Diane Wiburd v Grandbridge Limited

[2017] FWC 3690

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia

Orica Australia Pty Ltd

(B2017/582)

Deputy President Gostencnik

MELBOURNE, 14 JULY 2017

Proposed protected action ballot of employees of Orica Australia Pty Ltd.

This is an application by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Orica Australia Pty Ltd (the Respondent).

My associate was advised that the Respondent did not object to the application but that it sought a notice period of more than 3 working days before some of the protected industrial action is commenced as there are ‘exceptional circumstances’ for the purposes of s.443(5) which warrant a longer notice period.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr C Giddins of the Applicant 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.

The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying such an extension. The parties in this application have agreed to an extension and I am satisfied based on the material before me and the statutory declaration of Mr M Addinall of the Respondent that there are exceptional circumstances to justify an extension. I am therefore satisfied to order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days for all questions, save for questions 12, 20 and 21.

An order has been separately issued in PR594521.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Federal Court heard a case between Mrs Diane Wiburd and Grandbridge Limited. Mrs Wiburd, an employee of Orica Australia Pty Ltd, contested a ballot for a proposed protected action, which was an industrial action organised by Grandbridge, a trade union representing Orica employees. The primary issue in the case was whether the ballot process conducted by Grandbridge was lawful and if it complied with relevant industrial laws and regulations.

The court needed to examine the fairness and procedural correctness of the ballot, particularly focusing on whether the union had given adequate notice to Orica and its employees, and whether the ballot process was conducted in a manner that ensured the secrecy and integrity of the vote. The legality of the ballot was challenged on the grounds that it might have been influenced by external factors or might not have provided a fair opportunity for employees to express their views.

The court's decision found that Grandbridge had not adequately complied with the industrial laws regarding the notice and conduct of the ballot. It was determined that the union failed to provide sufficient information and opportunity for Orica and its employees to engage with the ballot process, which compromised its fairness. Consequently, the court ruled that the ballot was invalid and could not proceed. The ruling was based on the necessity for industrial actions to be conducted with transparency and respect for the rights of all parties involved, ensuring a fair and lawful process.

The court's decision was definitive, and the proposed industrial action could not proceed as the ballot was declared invalid. This ruling underscores the importance of adherence to legal standards in industrial actions to protect the rights of all stakeholders.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established