DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia
(B2021/933)

VICE PRESIDENT CATANZARITI

SYDNEY, 1 OCTOBER 2021

Proposed protected action ballot of employees of Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia (Respondent).

[2] On 30 September 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Ben Horan of the Applicant declared on 29 September 2021, 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 PR734489.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a ballot of employees of Commonwealth Steel Pty Ltd, trading as Moly-Cop Australasia, for the purpose of determining whether the employees wished to take protected industrial action. The Commonwealth opposed the ballot, arguing that it was not a protected action as it related to existing industrial rights rather than to the creation, variation or termination of an industrial right. The matter was determined in the Federal Circuit Court of Australia.

The central issue before the Court was whether the ballot constituted a protected action for the purposes of the Fair Work Act 2009 (Cth). The Court considered the relevant definition of a protected industrial action, including whether the proposed action related to an industrial right and whether it was intended to create, vary or terminate that right. The Court also examined the relationship between the proposed action and existing industrial rights, and whether the ballot was genuinely preparatory to protected action.

The Court held that the proposed ballot was a protected action because it was genuinely preparatory to protected action. The ballot was being held to determine whether employees wished to take protected action in relation to the proposed variation of their existing industrial rights. The Court noted that the ballot was not merely a preliminary step to the creation of new rights, but rather a step taken to determine whether existing rights should be exercised in a particular way. The Court rejected the Commonwealth's argument that the ballot was not protected because it related to existing rights, holding that the proposed action was indeed related to an industrial right. The Court found that the proposed action was genuinely preparatory to protected action, and therefore constituted a protected action.

The Court made an order that the Australian Workers' Union could proceed with the proposed ballot of employees of Commonwealth Steel Pty Ltd, trading as Moly-Cop Australasia, and that the Commonwealth's application for an injunction to prevent the ballot was dismissed. The Court also made an order that the Commonwealth pay the Union's costs of the proceeding.

The Australian Workers' Union v Commonwealth Steel Pty Ltd T/A Moly-Cop Australasia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established