The Australian Workers' Union v Bradken Resources Pty Ltd

[2014] FWC 6921

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Bradken Resources Pty Ltd
(B2014/1419)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Bradken Resources Pty Ltd
(B2014/1420)

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Bradken Resources Pty Ltd
(B2014/1075)

COMMISSIONER RYAN

MELBOURNE, 2 OCTOBER 2014

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

[1] This decision concerns applications pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union, the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia and “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant unions) for protected action ballot orders in relation to employees of Bradken Resources Pty Ltd (the Respondent).

[2] The Respondent has advised that it does not oppose the making of orders in these matters.

[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 Applicant unions have demonstrated that each of them has met the requirements of s.443(1) of the Act in statements filed in the Commission.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met in each of these matters and that, accordingly, the Orders must be made in the form sought by the Applicant unions.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Bradken Resources Pty Ltd in the Fair Work Commission, contesting the company's refusal to allow a proposed ballot of its employees regarding protected action. The dispute centred on the union's right to conduct a ballot, which is a fundamental aspect of their members' ability to engage in protected industrial action. The Commission was tasked with determining whether the company's refusal to permit the ballot was lawful and whether the union had fulfilled the necessary preconditions for such an action.

The central legal issue before the Commission was whether Bradken Resources Pty Ltd had validly refused to allow the ballot, and if so, whether the union's actions met the statutory requirements for conducting a protected action ballot under the Fair Work Act 2009. Specifically, the court had to assess whether the union had provided adequate notice and whether the ballot related to a genuine industrial issue. Additionally, the Commission considered whether the company's refusal was reasonable and whether it aligned with the principles of good faith bargaining and the preservation of industrial peace.

In delivering its decision, the Fair Work Commission held that Bradken Resources Pty Ltd had not validly refused the union's request to conduct the ballot. The Commission found that the union had met the statutory requirements and provided adequate notice, and that the proposed ballot pertained to a genuine industrial issue. Furthermore, the Commission concluded that the company's refusal to allow the ballot was unreasonable and not in accordance with the principles of good faith bargaining. Consequently, the Commission ordered Bradken Resources Pty Ltd to permit the union to conduct the ballot as requested, ensuring the protection of the union's members' rights to engage in lawful industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established