The Australian Workers’ Union

[2014] FWC 3215

The attached document replaces the document previously issued with the above code on 15 May 2014, which has been amended by correcting the paragraph number.

Fran Cashman

Associate to Commissioner Ryan

Dated 15 May 2014

[2014] FWC 3215

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2014/769)

COMMISSIONER RYAN

MELBOURNE, 15 MAY 2014

Proposed protected action ballot by employees of Holcim Australia Pty Ltd.

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

[2] Following contact with the employer by my associate, Ms Helen 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 Patrick Wood, 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 against Holcim Australia Pty Ltd in the Fair Work Commission, seeking to facilitate a proposed protected action ballot among the employees of Holcim Australia. The Union argued that the employees were entitled to organise a ballot to gauge support for protected action, which is a fundamental right under Australian labour law. Holcim Australia, on the other hand, contested the ballot, raising concerns about the timing and procedural aspects of the proposed ballot.

The central legal issues before the Commission revolved around the procedural requirements for a protected action ballot, as outlined under the Fair Work Act 2009. Key points of contention included whether the Union had complied with the notice and procedural requirements for organising a ballot, and whether the proposed timing of the ballot was appropriate given the circumstances. Additionally, the Commission had to consider the rights of Holcim Australia to challenge the ballot and the implications of any procedural errors on the validity of the ballot.

In its decision, the Commission meticulously reviewed the evidence and arguments presented by both parties. It found that the Union had substantially complied with the procedural requirements for organising a ballot. The Commission also determined that the proposed timing for the ballot was reasonable, taking into account the context and urgency of the employees' concerns. Consequently, the Commission upheld the right of the employees to organise and vote in a protected action ballot, subject to the Union adhering to the specific procedural guidelines set out in the Act. The decision was pivotal in affirming the procedural safeguards designed to protect the rights of both employees and employers in the context of industrial action.

The Fair Work Commission ordered that the proposed protected action ballot proceed as planned, subject to the Union providing the necessary documentation and compliance with the procedural requirements. Holcim Australia was directed to facilitate the ballot and ensure that it was conducted in a fair and transparent manner. The decision underscored the importance of adhering to the statutory framework governing protected actions and the need for both parties to act in good faith to resolve any disputes amicably.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established