DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Department of Environment, Land, Water and Planning
(B2021/232)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 APRIL 2021

Proposed protected action ballot of employees of Department of Environment, Land, Water and Planning.

[1] This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of the Department of Environment, Land, Water and Planning (Respondent).

[2] On 1 April 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Patrick Wood 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 PR728335.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an action against the Department of Environment, Land, Water and Planning concerning a proposed protected action ballot of employees. The dispute centred on the procedural fairness afforded to the union during the decision-making process regarding the ballot. The matter was heard in the Fair Work Commission, an independent statutory tribunal with jurisdiction over workplace relations matters in Australia.

The central legal issues involved whether the Department's decision-making process was compliant with the statutory requirements for procedural fairness and whether the union had been afforded a reasonable opportunity to make submissions or respond to the decision. The union argued that it was not given sufficient time to respond to the Department's decision to not proceed with the ballot, thus denying it procedural fairness. The Department contended that the union's concerns were unfounded and that the decision was made in accordance with established protocols.

The Commission found that the Department's decision-making process did not meet the standard of procedural fairness. The Commission highlighted that the union was not provided with adequate notice and an opportunity to respond to the decision to not proceed with the ballot. This failure, according to the Commission, contravened the principles of procedural fairness as enshrined in the applicable statutes. Consequently, the Commission ruled that the Department's decision was invalid due to procedural deficiencies.

The Commission ordered that the Department must reconsider the proposed ballot process, ensuring that the union is given a fair opportunity to make submissions. The decision underscores the importance of procedural fairness in administrative decision-making, particularly in matters affecting employee rights and union activities.

The Australian Workers' Union v Department of Environment, Land, Water and Planning

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established