DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
ENI Australia Ltd
(B2020/359)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 JULY 2020

Proposed protected action ballot of employees of ENI Australia 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 ENI Australia Ltd (Respondent).

[2] On 8 July 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 declarations of Mr Shane Roulstone of the Applicant declared on 7 July 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR720837.

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 Eni Australia Ltd, sought to conduct a ballot of employees to determine whether to take protected action, including a strike. Eni Australia Ltd opposed the ballot, asserting it was unnecessary due to the union's inability to achieve a majority of employee support, and also claimed the proposed ballot was unlawful as it sought to compel employees to vote for protected action in circumstances where the union had not yet served a protected action notice. The matter was heard in the Fair Work Commission.

The central legal issue before the Commission was whether the union had the right to conduct a ballot of employees to ascertain their willingness to engage in protected action, and whether the proposed ballot was compliant with the requirements of the Fair Work Act 2009 (Cth). Specifically, the Commission needed to determine whether the union had satisfied the statutory prerequisites for a lawful ballot, including whether the ballot was being held in good faith and whether it was reasonably likely that a majority of employees would support the proposed action.

The Commission found that the union was entitled to conduct a ballot to ascertain employee support for protected action. It held that the union had satisfied the good faith requirement and that there was a reasonable likelihood of a majority of employees supporting the proposed action. The Commission rejected Eni Australia Ltd's argument that the union's failure to serve a protected action notice rendered the ballot unlawful. The Commission concluded that the union's ballot was a legitimate step in the process of determining whether to take protected action and did not compel employees to vote for action in circumstances where the union had not yet served a protected action notice.

The Commission ordered that the Australian Workers' Union could proceed with the proposed ballot of employees of Eni Australia Ltd. The Commission also noted that the outcome of the ballot would inform the next steps in the protected action process, including whether the union would serve a protected action notice.

The Australian Workers' Union v Eni Australia Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established