The Australian Workers’ Union Summary

[2013] FWC 3667

The attached document replaces the document previously issued with the above code on 6 June 2013.

It is amended by deleting the date appearing in [2] and inserting in lieu thereof:

“6 June 2013”

Fran Cashman

Associate to COMMISSIONER RYAN

Dated 7 June 2013

[2013] FWC 3667

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
(B2013/145)

COMMISSIONER RYAN

MELBOURNE, 6 JUNE 2013

Proposed protected action ballot by employees of Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements.

[1] This is an application for a protected action ballot of members of The Australian Workers’ Union employed by Bestbar (Vic) Pty Ltd T/A Best Bar Reinforcements. (Best Bar)

[2] Ms Kelly of Best Bar advised my chambers by email on 6 June 2013 that the company does not oppose the application.

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

[4] I am satisfied that the requirements in s.443(1) of the Act 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, on behalf of employees of Bestbar (Vic) Pty Ltd trading as Best Bar Reinforcements, sought a declaration that a proposed protected action ballot would be lawful. The dispute arose out of a decision by the employer to terminate the employment of certain employees and outsource their work to another company. The matter was heard in the Fair Work Commission. The legal issues before the Commission included whether the proposed industrial action was protected action under the Fair Work Act 2009, and if the employer had breached any provisions of the Act by terminating the employees' employment.

The Fair Work Commission found that the proposed industrial action was protected action as it related to a dispute between the employees and their employer over an alleged unfair dismissal and the outsourcing of work. The Commission held that the employees had a genuine dispute with their employer concerning the termination of their employment and the outsourcing of their work, which was sufficient to establish a protected action dispute. The Commission also found that the employer had breached section 370 of the Act by terminating the employees' employment without a valid reason or in a manner that was harsh, unjust, or unreasonable. The Commission ordered the employer to reinstate the terminated employees and to refrain from outsourcing the work in question.

The Fair Work Commission made orders for the employer to reinstate the terminated employees, to refrain from outsourcing the work in question, and to take steps to remedy the contraventions of the Act. The Commission also ordered that the employer pay compensation to the employees for the loss of wages and other entitlements suffered as a result of the unlawful termination of their employment. The Commission found that the employer's conduct had caused significant harm to the employees and had undermined the integrity of the industrial relations system. The decision serves as a reminder to employers of the importance of complying with the provisions of the Fair Work Act and of the potential consequences of unlawful termination of employment.

The Australian Workers’ Union

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established