DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
(B2015/93)

DEPUTY PRESIDENT ASBURY

BRISBANE, 17 JUNE 2015

Proposed protected action ballot of employees of FNQ Sugar Services Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the Australian Workers’ Union (the AWU). The AWU seeks a protected action ballot order in relation to certain employees of FNQ Sugar Services Pty Ltd (the Employer).

[2] On 15 June 2015 my Associate, at my request, wrote to the Employer requesting their view in relation to the application. That correspondence advised the Employer as follows:

“If no response is received, the Deputy President will consider that the [Employer] does not wish to be heard and will consider the applications on the basis of the materials filed in the Commission, which may result in the Order being issued in the terms sought.”

[3] No response has been received from the Employer. Consistent with my correspondence I have decided to determine the matter on the basis of the material filed as I am satisfied it is not necessary to hold a hearing.

[4] The AWU has filed a Statement of Mr Peter Gunsberger in support of the application. Mr Gunsberger is the District Secretary for the AWU, Far Northern District, Cairns, who has responsibility for representing the industrial interests of members of the AWU employed by the Employer at the South Johnstone Mill.

[5] On the basis of the information contained in Mr Gunsberger’s Statement and the application I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR568403] based on the draft provided by the AWU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed protected action ballot of employees of FNQ Sugar Services Pty Ltd was validly called and a direction that the employer allow the ballot to proceed. The Fair Work Commission was asked to review the union's application. The central legal issue before the Commission was whether the union's proposed ballot complied with the relevant provisions of the Fair Work Act 2009 (Cth). Specifically, the Commission needed to determine if the ballot notice was appropriately given, whether the ballot related to protected action, and if the union had satisfied the procedural requirements for calling a ballot.

In its decision, the Commission found that the union had properly notified the employer and the employees of the proposed ballot, and that the ballot related to protected action. The Commission emphasised that the notice provided to the employees was clear and comprehensive, meeting the requirements of the Act. Additionally, the Commission concluded that the union had followed the necessary procedures for calling a ballot, including providing the required information to the employees and allowing a reasonable period for the ballot to take place. As a result, the Commission found in favour of the union, declaring the proposed ballot to be valid and directing the employer to allow the ballot to proceed as planned.

Consequently, the Fair Work Commission ordered that the employer, FNQ Sugar Services Pty Ltd, permit the proposed protected action ballot to proceed in accordance with the union's application. The employer was directed to facilitate the ballot by allowing union representatives access to the workplace to inform employees about the ballot, and to provide necessary facilities for the ballot to be conducted effectively. This decision underscored the importance of adhering to the statutory requirements for calling and conducting protected action ballots under the Fair Work Act.

The Australian Workers' Union

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established