DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Australian Char Pty Ltd
(B2015/1174)

DEPUTY PRESIDENT KOVACIC

CANBERRA, 11 AUGUST 2015

Proposed protected action ballot of employees of Australian Char Pty Ltd.

[1] This is an application by The Australian Workers’ Union (the AWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Australian Char Pty Ltd (the Respondent).

[2] The AWU has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately four occasions since 28 February 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 11 August 2015 I was advised by Mr Mike Hamilton, Operations Manager that the Respondent does not intend to oppose this application. In doing so, the Respondent did not challenge that the AWU had been and was genuinely trying to reach agreement in respect of either site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR570705] is based on the draft order provided by the AWU and will be issued in conjunction with this decision.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, acting on behalf of the employees of Australian Char Pty Ltd, initiated proceedings against the company to seek authorisation for a protected action ballot. The dispute centred around the company's refusal to allow a ballot of its employees, which was deemed necessary by the Union for the purpose of initiating protected industrial action. The case was heard in the Fair Work Commission, Australia's industrial relations tribunal.

The central legal issue that the Commission had to address was whether the Union's application for authorisation of a protected action ballot was valid and met the requirements set forth in the Fair Work Act 2009. Specifically, the Commission needed to determine if the Union had provided sufficient evidence to demonstrate that the employees were genuinely seeking to take protected industrial action and if the ballot was necessary for the purpose of informing the employees of the proposed action. The company argued that the ballot was not necessary as it had already engaged in discussions with the Union and was prepared to negotiate in good faith.

In its decision, the Commission found that the Union had satisfied the necessary criteria for authorisation of a protected action ballot. The Commission held that the evidence provided by the Union demonstrated that there was a genuine dispute between the employees and the employer and that the proposed industrial action was related to that dispute. The Commission also noted that the company had not provided any evidence to suggest that it was prepared to engage in meaningful negotiations with the Union. The Commission concluded that the employees had a legitimate interest in taking protected action and that a ballot was necessary to inform them of the proposed action. Consequently, the Commission authorised the Union to conduct a protected action ballot among the employees of Australian Char Pty Ltd.

The Commission ordered that the Union could proceed with the ballot and that the company was required to facilitate the process by providing access to its employees and any necessary information. The company was also directed to take no action to prevent or hinder the conduct of the ballot. The decision highlighted the importance of good faith negotiations and the role of the Commission in resolving industrial disputes.

The Australian Workers' Union v Australian Char Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established