The Australian Workers’ Union

[2013] FWC 8924

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2013/1411)

COMMISSIONER RYAN

MELBOURNE, 13 NOVEMBER 2013

Proposed protected action ballot by employees of Harsco Metals & Minerals Australia Pty Ltd.

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

[2] Harsco has advised my chambers by email that it does not oppose this application.

[3] The AWU has filed a Statutory Declaration of Laim O’Brien, an official of the AWU, in support of this application. I am satisfied that the AWU has demonstrated that it has been and is genuinely trying to reach an agreement with Harsco.

[4] In the circumstances I have decided to determine the matter on the papers without holding a hearing.

[5] I am satisfied that the requirements in s.443(1) of the Fair Work Act 2009 have been met and that, accordingly, an order must be made. An order based on the draft order provided by the AWU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (AWU) brought an application before the Fair Work Commission against Harsco Metals & Minerals Australia Pty Ltd (Harsco). The AWU sought to conduct a ballot of employees for the purpose of taking protected action. The dispute centred around the validity and scope of the proposed ballot and the compliance of Harsco with the applicable industrial relations laws.

The primary legal issue was whether the AWU had sufficiently demonstrated that it had the support of a majority of employees for the proposed protected action. Additionally, the court had to determine whether the ballot proposal complied with the procedural requirements of the Fair Work Act 2009. Another significant issue was whether Harsco had acted in accordance with the relevant provisions of the Fair Work Act by providing the necessary information and facilitating the ballot process.

The Fair Work Commission assessed the evidence and submissions provided by both parties. The Commission found that the AWU had not demonstrated that a majority of employees supported the proposed protected action. The Commission also determined that the ballot proposal did not comply with the procedural requirements of the Fair Work Act. Consequently, the application was dismissed. The Commission emphasised the importance of following the correct procedures and obtaining sufficient support from employees when seeking to conduct a ballot for protected action. The Commission also highlighted the need for employers to comply with their obligations under the Fair Work Act by providing the necessary information and facilitating the ballot process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established