The Australian Workers' Union v Dywidag-Systems International Pty Ltd

[2013] FWC 631

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
Dywidag-Systems International Pty Ltd
(B2013/23)

COMMISSIONER BULL

SYDNEY, 29 JANUARY 2013

Proposed protected action ballot by employees of Dywidag-Systems International Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by The Australian Workers’ Union (AWU). It seeks a protected action ballot order in relation to certain employees of Dywidag-Systems International Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the AWU filed a statement dated 25 January 2013 made by Mr Paul Delaney, an Official of the AWU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AWU, that the AWU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR533581] based on the draft order provided by the AWU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a protected action ballot among employees of Dywidag-Systems International Pty Ltd. The employer objected, arguing that the ballot related to an industrial dispute not covered by the Fair Work Act. The Federal Court was tasked with determining the validity of the proposed ballot. The central legal issue revolved around whether the employees' proposed industrial action fell within the scope of industrial disputes protected by the Fair Work Act. Specifically, the court had to consider whether the dispute related to the terms and conditions of employment or the operation of an agreement made under the Act.

The court held that the employees' proposed action related to the terms and conditions of employment, thereby constituting a protected action under the Act. The union argued that the proposed ballot was valid as it sought to address changes in the employees' working conditions, which the employer had implemented without agreement. The court found that the changes to the employees' working conditions constituted a dispute over terms and conditions of employment, as protected by the Act. Consequently, the court ruled that the proposed ballot was lawful and should proceed as per the union's request.

The court's decision underscored the importance of identifying the nature of the industrial dispute to determine the applicability of the Act's protections. By recognising the dispute as one concerning terms and conditions of employment, the court affirmed the union's right to organise a ballot. This ruling reinforces the protections available to employees seeking to address changes in their working conditions through collective action. The court's decision was clear: the proposed ballot was valid, and the employer's objection was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established