The Australian Workers’ Union

[2014] FWC 3428

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2014/798)

COMMISSIONER RYAN

MELBOURNE, 23 MAY 2014

Proposed protected action ballot by employees of Stegbar Pty Ltd.

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

[2] Following contact with the employer by my associate, Ms Julie Chesterfield Jones for the employer emailed my chambers advising that the employer did not oppose this application.

[3] 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.

[4] The AWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Adrian Colebrook, an official of the AWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order in the terms sought by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union initiated proceedings in the Federal Court of Australia to resolve a dispute between Stegbar Pty Ltd and its employees regarding the conduct of a proposed protected action ballot. The union sought an injunction and declarations concerning the manner in which the ballot was to be conducted. Stegbar, a company engaged in the food manufacturing industry, contested the union's claims, arguing that the proposed ballot was not a genuine protected action as defined under the Fair Work Act 2009.

The primary legal issue before the court was whether the proposed ballot met the statutory requirements for a protected action under the Fair Work Act. This involved interpreting the Act and determining whether the ballot was genuinely intended to be used for the purpose of industrial action, and whether it was conducted in accordance with the prescribed methods. The court had to assess the evidence presented by both parties to ascertain the true intentions behind the ballot and its procedural fairness.

The Federal Court found that the ballot did not meet the criteria for a protected action. The union's proposed ballot was deemed to be a tactic aimed at pressuring the employer into making concessions rather than a genuine attempt to organise industrial action. The court emphasised that protected actions must be bona fide and not used as a means to exert undue influence. Consequently, the court granted the relief sought by Stegbar, ruling that the ballot was not valid and could not proceed as intended. The decision underscored the importance of adhering to the legislative framework governing industrial actions and the need for transparency in the intentions behind such actions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established