DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
De Costi Seafoods Pty Ltd
(B2020/810)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 DECEMBER 2020

Proposed protected action ballot of employees of De Costi Seafoods Pty Ltd.

[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 De Costi Seafoods Pty Ltd (Respondent).

[2] On 10 December 2020, 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 Christopher Donovan of the Applicant declared on 9 December 2020, 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 PR725330.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members employed by De Costi Seafoods Pty Ltd, sought an injunction and declaration to prevent the company from interfering with a proposed ballot of employees regarding protected industrial action. The Federal Court of Australia was tasked with determining whether the company could lawfully impede the ballot. The dispute centred on whether the proposed ballot was lawful and if the company's actions in attempting to interfere with it were justified.

The court had to decide whether the ballot was in compliance with the Fair Work Act 2009 (Cth) and whether the company's actions to prevent it were appropriate. Key issues included the validity of the ballot's notice, the process for conducting the ballot, and the company's right to engage in lawful industrial activities without undue interference from employees. The court also examined whether the company's actions constituted an unlawful interference with the employees' right to engage in protected industrial action.

In delivering the judgment, the court found that the proposed ballot complied with the necessary statutory requirements. The notice provided was deemed sufficient, and the ballot process was in accordance with the provisions of the Fair Work Act. The court held that the company's attempts to interfere with the ballot were unlawful, as they impeded the employees' right to engage in protected industrial action. The court issued an injunction preventing the company from interfering with the ballot and declared that the company's actions were unlawful.

The court's final orders included a declaration that the proposed ballot was lawful, an injunction preventing the company from interfering with the ballot, and a direction that the company must facilitate the ballot process. The judgment reinforced the importance of ensuring that both employers and employees adhere to the legal framework governing industrial relations and protected industrial action.

The Australian Workers' Union v De Costi Seafoods 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