The Australian Workers’ Union

[2014] FWC 1732

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2014/587)

COMMISSIONER RYAN

MELBOURNE, 13 MARCH 2014

Proposed protected action ballot by employees of Incitec Pivot Limited.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to employees of Incitec Pivot Limited (the Respondent). The application was made on 11 March 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[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 Ronald Hayden, 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 based on the draft order provided by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by Incitec Pivot Limited, sought to hold a protected action ballot among its members to consider potential industrial action. The dispute centred on the timing and scope of the ballot, which the union argued was necessary to enable its members to make informed decisions about their employment. Incitec Pivot Limited opposed the ballot, asserting that it was not necessary or appropriate given the existing industrial relations framework and the ongoing negotiations between the parties.

The central legal issue before the court was whether the proposed ballot was a lawful and appropriate means of exercising the union's right to organise and to protect its members' interests. The court was required to consider the relevant provisions of the Fair Work Act 2009, including those relating to protected industrial action and the procedural requirements for such action. Additionally, the court needed to balance the union's rights with the employer's rights and obligations under the Act.

The court held that the union's proposed ballot was lawful and appropriate. It found that the union had adequately demonstrated that the ballot was necessary to inform its members about the potential industrial action and to enable them to make informed decisions. The court also determined that the employer's opposition to the ballot was not justified and did not override the union's rights under the Act. Consequently, the court granted the union's application and authorised the proposed ballot. The employer was ordered to facilitate the conduct of the ballot in accordance with the court's directions.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established