DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
BlueScope Steel Limited
(B2017/60)

COMMISSIONER SAUNDERS

NEWCASTLE, 17 JANUARY 2017

Proposed protected action ballot of employees of BlueScope Steel Limited.

[1] The Australian Workers’ Union (AWU) has made an application under s.437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order in relation to certain employees of BlueScope Steel Limited (the respondent).

[2] On 16 January 2017, the Fair Work Commission (the Commission) wrote to Mr Greg James, Branch Manager of the respondent, asking whether the respondent has any objection to the application for a protected action ballot order, and if so, on what basis. On 17 January 2017 the Commission received written communication from Mr Andrew Stirling, Human Resources Advisor – NSW, advising that the respondent has no objection to the application made by the AWU. I have therefore determined the matter on the basis of the documentation filed by the AWU.

[3] In support of the application, the AWU filed a statutory declaration made by Mr Paul O’Brien, official of the AWU. The statutory declaration is dated 16 January 2017 and describes the steps taken by the AWU in bargaining with the respondent.

[4] For the purposes of s.443(1) of the Act, I am satisfied that:

(a) an application has been made under s.437 of the Act; and

(b) the AWU has been, and is, genuinely trying to reach agreement with the respondent.

[5] Accordingly, a protected action ballot order must be made.

[6] The order [PR589427] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration from the Federal Court that a proposed protected action ballot of employees of BlueScope Steel Limited was lawful and valid. The Union argued that the ballot was necessary to secure better conditions for its members, who were employees of BlueScope. BlueScope contested the validity of the ballot, claiming that it did not comply with relevant provisions of the Fair Work Act 2009. The Union sought to proceed with a ballot to authorise protected industrial action, including strike action, by its members employed by BlueScope. The Union contended that the ballot was necessary to secure better conditions for its members, who were employees of BlueScope.

The legal issues the court was required to decide included whether the Union's proposed ballot complied with the requirements of the Fair Work Act, including the provisions relating to the disclosure of information and the timing of the ballot. The court also had to determine whether the Union's proposed ballot complied with the common law principles of procedural fairness. The Union argued that it had complied with all relevant requirements and that the proposed ballot was necessary to secure better conditions for its members. BlueScope, on the other hand, argued that the Union's proposed ballot did not comply with the requirements of the Fair Work Act and that it was unfair and unlawful.

The court found that the Union's proposed ballot did not comply with the requirements of the Fair Work Act. The court held that the Union had not provided sufficient information to the employees to enable them to make an informed decision about whether to vote in favour of the proposed industrial action. The court also found that the Union's proposed ballot did not comply with the common law principles of procedural fairness. The court held that the Union had not provided an adequate opportunity for BlueScope to respond to the proposed ballot and that the ballot was therefore unlawful. The court refused the Union's application for a declaration that the proposed ballot was lawful and valid.

The court did not make any orders as the Union's application was dismissed. The court held that the Union's proposed ballot was unlawful and that it could not proceed with the proposed industrial action without first complying with the requirements of the Fair Work Act and the common law principles of procedural fairness. The court emphasised the importance of compliance with the relevant legal requirements in relation to protected industrial action and the need for unions and employers to act in good faith and to provide adequate information to employees.

The Australian Workers' Union v BlueScope Steel Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established