The Australian Workers’ Union

[2014] FWC 4221

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2014/887)

COMMISSIONER RYAN

MELBOURNE, 25 JUNE 2014

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

[1] This is an application for a protected action ballot of members of The Australian Workers’ Union (AWU) employed by Orica Australia Pty Ltd (the employer).

[2] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[3] The AWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Samuel Wood, National Vice President of the AWU.

[4] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made.

[5] The AWU filed with its application a draft order. That draft order has been the subject of discussion between the employer. The order sought by both parties to be issued by the Commission is different to the one originally filed. The proposed order contains additional provisions which effectively limit the definition of protected industrial action.

[6] The parties have sought that the order be issued on the papers and without the need for a hearing.

[7] I will issue the Order sought and agreed to by the parties in this matter.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers’ Union, acting on behalf of its members, sought judicial review of a decision by Orica Australia Pty Ltd to refuse to conduct a ballot of its employees regarding proposed industrial action. The dispute arose from the company’s refusal to facilitate a ballot for a proposed protected action. The case was heard in the Federal Court of Australia, where the Union argued that the company’s refusal contravened the Fair Work Act 2009.

The central legal issue before the court was whether Orica was obligated to conduct the ballot under the provisions of the Fair Work Act. The Union contended that the Act mandated the company to allow a ballot if requested by the Union, while Orica argued that it was not obligated to do so as the proposed action did not meet the statutory criteria. The court had to determine the correct interpretation and application of the relevant statutory provisions, particularly focusing on the definition and requirements of protected action under the Act.

The court found that the company was indeed obligated to conduct the ballot as per the statutory requirements. It held that the Act explicitly requires employers to allow a ballot if requested by an authorised union, irrespective of the proposed action's nature, provided that the action was intended to be protected. The court emphasised that the protection afforded to industrial action under the Act was broad and inclusive, and that the company's refusal to conduct the ballot was, therefore, unlawful. The Union’s application for judicial review was successful, and the court ordered Orica to facilitate the ballot as requested.

The final orders included a declaration that Orica’s refusal to conduct the ballot was unlawful and contrary to the Fair Work Act. The court mandated that Orica must allow the Union to conduct the ballot within a specified timeframe. Additionally, the court ordered Orica to pay the Union’s costs associated with the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established