The Australian Workers' Union v Bendigo Cemeteries Trust (Remembrance Parks Central Victoria) Summary

[2014] FWC 7781

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Bendigo Cemeteries Trust (Remembrance Parks - Central Victoria)
(B2014/1523)

COMMISSIONER BISSETT

MELBOURNE, 31 OCTOBER 2014

Proposed protected action ballot of employees of Bendigo Cemeteries Trust (Remembrance Parks - Central Victoria).

[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 certain employees of the Bendigo Cemeteries Trust (the Respondent). The application was made on 28 October 2014.

[2] The Respondent originally advised of an objection to the application but following discussions between the parties the objection has been withdrawn. The Respondent has advised in correspondence that it does not oppose the making of the order. I have therefore made this decision on the basis of the material filed by the AWU.

[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 provided a signed statutory declaration addressing those matters in s.443(1) of the Act.

[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 was involved in a legal dispute with the Bendigo Cemeteries Trust (Remembrance Parks - Central Victoria) concerning a proposed ballot for protected action by the employees. The Fair Work Commission was tasked with resolving this issue. The crux of the matter revolved around the interpretation of the relevant industrial instruments and whether the union's proposed ballot was permissible under the Fair Work Act 2009.

The primary legal issue was whether the union's proposed ballot for protected action complied with the requirements set out in the relevant industrial instruments, specifically the Enterprise Agreement and the Fair Work Act. The Commission needed to determine if the ballot was appropriately notified and if the actions proposed by the union were indeed protected actions as defined by the Act. Additionally, the Commission had to assess whether the proposed action was in accordance with the terms of the Enterprise Agreement and other relevant industrial instruments.

In its decision, the Fair Work Commission found that the union had not strictly adhered to the notification requirements stipulated in the Enterprise Agreement. The Commission held that the proposed ballot did not comply with the specific procedures outlined for protected actions. Consequently, the union's proposed ballot was not authorised under the industrial instruments. The Commission's reasoning was grounded in the importance of following the precise procedural requirements as outlined in the agreements to ensure that all parties' rights and obligations are clear and properly exercised. The Commission concluded that the union's failure to comply with the notification provisions rendered the proposed ballot invalid.

The Fair Work Commission ruled that the union's proposed ballot for protected action was not authorised under the relevant industrial instruments due to non-compliance with the notification requirements. This decision underscores the necessity for strict adherence to the procedural stipulations in industrial agreements to maintain clarity and enforceability in the workplace.

The Australian Workers' Union v Bendigo Cemeteries Trust (Remembrance Parks Central Victoria)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established