The Australian Workers' Union v Adelaide Brighton Cement Limited

[2022] FWC 1972

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Adelaide Brighton Cement Limited

(B2022/1129)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 JULY 2022

Proposed protected action ballot of employees of Adelaide Brighton Cement Limited

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Adelaide Brighton Cement Limited (Respondent).

The Respondent did not take up any of the opportunities it was given to comment on the application.

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

On the basis of the material before me, including the declaration of Mr Gary Henderson of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR744186.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order for certain employees of Adelaide Brighton Cement Limited. The dispute centred on the proposed industrial action, which the union intended to undertake. Adelaide Brighton Cement Limited did not participate in the proceedings, declining any opportunities to comment on the application. As a result, the Deputy President determined the matter based on the submitted documents without conducting a hearing.

The primary legal issue the court needed to decide was whether the union had genuinely attempted to reach an agreement with Adelaide Brighton Cement Limited and whether the statutory notification period for the proposed agreement had been met. The union's declaration, submitted by Mr. Gary Henderson, detailed the bargaining process and demonstrated the union's efforts to reach an agreement. The court found that the union had fulfilled the requirements outlined in section 443(1) of the Act.

The Deputy President was satisfied that the notification time for the proposed agreement was appropriate and that the union had genuinely attempted to negotiate with Adelaide Brighton Cement Limited. Based on these findings, the court granted the application for a protected action ballot order. This decision allowed the union to proceed with the industrial action as planned, subject to the conditions set out in the Fair Work Act.

The court issued a separate order in PR744186, formalising the decision and allowing the union to conduct the protected action ballot as requested. This outcome reflects the court's recognition of the union's efforts to reach an agreement and its determination to ensure that the legal requirements for such industrial actions were met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established