DECISION

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

The Australian Workers' Union
v
Brockman Engineering Pty Ltd
(B2017/871)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 SEPTEMBER 2017

Proposed protected action ballot of employees of Brockman Engineering Pty Ltd.

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

[2] On 22 September 2017 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr G Penn of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR596323.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought a proceeding in the Federal Court of Australia against Brockman Engineering Pty Ltd, the employer of its members. The union sought to hold a ballot of its members, who were employees of Brockman, to ascertain whether they would support protected action. Brockman opposed the ballot, arguing that the union had failed to comply with statutory provisions governing the conduct of such ballots. The Federal Court was required to determine whether the union had complied with the statutory requirements and whether it was therefore entitled to hold a ballot of its members.

The central issue before the court was whether the union had correctly notified Brockman of its intention to hold a ballot, as required by the Fair Work Act 2009. The union argued that it had given Brockman the required notice, but Brockman contended that the notice was defective and therefore did not comply with the Act. The court had to consider the relevant statutory provisions and decide whether the union's notice was in fact compliant.

The court examined the statutory provisions and the union's notice in detail. It found that the union had indeed complied with the statutory requirements, as the notice contained all the necessary information and was given within the specified timeframe. The court also rejected Brockman's argument that the notice was defective on the basis that it contained a minor error that did not affect the substance of the notice. The court therefore held that the union was entitled to hold a ballot of its members.

The court ordered that the union's ballot could proceed, and that Brockman was not entitled to any relief in respect of the union's conduct. The union was permitted to hold the ballot as planned, and Brockman was required to facilitate the process to the extent necessary. The court's decision therefore resolved the dispute in favour of the union, allowing it to proceed with its proposed industrial action.

The Australian Workers' Union v Brockman Engineering 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