The Australian Workers' Union v Devro Pty Ltd

[2022] FWC 3291

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Devro Pty Ltd

(B2022/1831)

VICE PRESIDENT CATANZARITI

SYDNEY, 14 DECEMBER 2022

Proposed protected action ballot of employees of Devro Pty Ltd

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 Devro Pty Ltd (Respondent).

On 13 December 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Jack Ayoub of the Applicant declared on 12 December 2022, 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.

An Order has been separately issued in PR748910.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for an order under section 437 of the Fair Work Act 2009, which allows for a protected action ballot when an employer refuses to negotiate in good faith. The application sought to conduct a ballot for certain employees of Devro Pty Ltd (Devro) regarding proposed protected action. Devro did not oppose the application, and the matter was determined on the papers without a hearing. The Commission was satisfied that the AWU had met the requirements of section 443(1) of the Act, which involves a notification period and genuine attempts at bargaining.

The primary legal issue was whether the AWU had demonstrated that it had genuinely attempted to reach an agreement with Devro, as required by section 443(1) of the Act. The Commission needed to ascertain if the AWU had adhered to the notification period and had engaged in good faith bargaining. The statutory declaration provided by Jack Ayoub of the AWU, which detailed the union's negotiation efforts and adherence to the statutory requirements, was central to this determination. The Commission's decision hinged on verifying these claims against the statutory criteria.

The Vice President of the Fair Work Commission, Catanzariti, examined the statutory declaration and other documents before concluding that the AWU had met the statutory requirements. The evidence indicated that the union had followed the prescribed notification period and had been genuinely attempting to reach an agreement with Devro. The absence of opposition from Devro further supported the AWU's application. The Vice President was satisfied with the AWU's efforts and the compliance with legislative mandates, leading to a favourable decision in their favour.

The Fair Work Commission issued an order permitting the AWU to conduct a ballot among the employees of Devro as per the provisions of section 437 of the Act. This order was issued separately and is referenced as PR748910. The decision underscores the importance of adhering to the procedural requirements when seeking to ballot for protected action, and confirms the AWU's entitlement to proceed under the circumstances presented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established