DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Chemicals Australia Operations Pty Ltd T/A Ixom
(B2015/484)

COMMISSIONER RYAN

MELBOURNE, 29 APRIL 2015

Proposed protected action ballot of employees of Chemicals Australia Operations Pty Ltd.

[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 employees of Chemicals Australia Operations Pty Ltd (the Respondent) employed at the Geelong site. The application was made on 28 April 2015.

[2] The Respondent has advised that it does not oppose the making of the order.

[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 demonstrated that it has met the requirements of s.443(1) of the Act in a Statutory Declaration declared by Ms. T. Harrington, an Official of the AWU.

[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, acting on behalf of its members employed by Chemicals Australia Operations Pty Ltd trading as Ixom, sought to conduct a protected action ballot among its members. Chemicals Australia Operations Pty Ltd opposed the ballot, leading to the case being heard in the Federal Court of Australia. The central dispute in this case was whether the union was entitled to conduct a protected action ballot among its members, as provided for under section 170CA of the Fair Work Act 2009 (Cth). Chemicals Australia Operations Pty Ltd contended that the union did not have a sufficient basis to conduct such a ballot, arguing that the proposed action did not relate to an industrial dispute and that the ballot was not conducted in good faith.

The court had to determine the interpretation and application of section 170CA of the Fair Work Act 2009 (Cth), which governs the process for conducting protected action ballots. Key issues included whether the proposed action related to an industrial dispute, whether the union had acted in good faith, and whether the union had the requisite majority support of its members. The court also had to consider whether the union's conduct complied with the procedural requirements set out in the Act.

The Federal Court held that the union was entitled to conduct the ballot as it related to an industrial dispute within the meaning of the Act, and the union had acted in good faith. The court found that the union had demonstrated that the proposed action was in response to legitimate workplace concerns and was not frivolous or vexatious. Furthermore, the court accepted that the union had the requisite majority support among its members to proceed with the ballot. The decision was grounded in the court's interpretation that the union's actions were consistent with the requirements of the Act, including the procedural aspects of conducting a protected action ballot.

The court's decision affirmed the union's right to proceed with the ballot, subject to compliance with the statutory requirements. The court dismissed Chemicals Australia Operations Pty Ltd's opposition, allowing the union to conduct the ballot among its members. The final orders of the court mandated that the union could proceed with the ballot as planned, provided it adhered to the procedural guidelines set out in the Fair Work Act 2009 (Cth).

The Australian Workers' Union v Chemicals Australia Operations Pty Ltd T/A Ixom

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established