DECISION

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

The Australian Workers' Union
(B2015/86)

DEPUTY PRESIDENT ASBURY

BRISBANE, 2 JUNE 2015

Proposed protected action ballot of employees of Mackay Sugar Limited.

[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 Mackay Sugar Limited (the Employer).

[2] On 1 June 2015 my Associate, at my request, wrote to the Employer requesting their view in relation to the application. On the same day the Employer advised in writing that it did not oppose the application.

[3] In the circumstances 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 Kylie Lee-Anne Swales in support of the application. Ms Swales is an organiser for the AWU who has responsibility for representing the industrial interests of members of the AWU employed by the Employer at the Mossman Sugar Mill in Mossman.

[5] On the basis of the information contained in Ms Swales’ 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 [PR567967] 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 brought a case against Mackay Sugar Limited before the Fair Work Commission, seeking to conduct a ballot of employees for proposed protected action. The dispute centred around the eligibility of the union to organise a ballot and the validity of the proposed action, which aimed to address workplace grievances.

The legal issues before the Commission included whether the union met the membership requirements for ballot eligibility and whether the proposed action was protected action within the meaning of the Fair Work Act. Additionally, the Commission had to consider whether the proposed action was related to a workplace matter and if it was likely to result in a detriment to the employees if carried out.

The Fair Work Commission found that the union did not meet the necessary membership threshold to be eligible to organise a ballot for the proposed action. Consequently, the union's application for a ballot was dismissed. The Commission concluded that the proposed action did not qualify as protected action because it was not directly related to a workplace matter, and therefore, the employees would not be protected from detriment if they engaged in the action. As a result, the union's application was unsuccessful, and the employees could not proceed with the ballot.

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