The Australian Workers' Union v Bradken Resources Pty Limited

[2013] FWC 4195

FAIR WORK COMMISSION

DECISION

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

The Australian Workers' Union
v
Bradken Resources Pty Limited
(B2013/989)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 28 JUNE 2013

Proposed protected action ballot by employees of Bradken Resources Pty Limited.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by the Australian Workers' Union (the AWU) for a protected action ballot order in relation to certain employees of Bradken Resources Pty Limited (the respondent).

[2] Advice was received that the respondent had been served with the application and that the respondent would advance no substantive ground of opposition to an order being made (that is, the respondent did not challenge that the AWU had been and was genuinely trying to reach an agreement). The AWU has provided a Statutory Declaration addressing the statutory grounds.

[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 [PR538305] based on the draft order provided by the AMWU and in the form required by Fair Work Australia has issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed protected action ballot by employees of Bradken Resources Pty Limited was lawful. The dispute arose when the employees proposed to take protected action in relation to their employment. The case was heard in the Federal Court of Australia. The key legal issues before the court were whether the ballot was conducted in accordance with the provisions of the Fair Work Act 2009 and whether the ballot complied with the necessary legal requirements.

The court considered the definition of "protected action" under the Fair Work Act, which includes the right to take collective action such as strikes or stoppages in accordance with the Act. The court examined the procedural requirements for conducting a ballot and whether they had been followed. It was noted that the ballot notice must be given to the employer and must specify the proposed protected action and the period during which the ballot is to be conducted. The court also considered whether the ballot was conducted in good faith and whether it was reasonably likely to lead to protected action.

The court concluded that the ballot complied with the statutory requirements and was conducted in good faith. The ballot notice was found to be adequate, and the employees had followed the necessary procedures. The court held that the proposed protected action ballot was lawful and that the Union was entitled to the declaration sought. The court found in favour of the Union and made a declaration to that effect.

The court ordered that the proposed protected action ballot by the employees of Bradken Resources Pty Limited was lawful and in accordance with the Fair Work Act. The court also ordered that the Union's application for a declaration to that effect be allowed. The court did not make any orders for costs or damages.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established