The Australian Workers' Union v Graincorp Operations Limited

[2023] FWC 813

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers' Union
v

Graincorp Operations Limited

(B2023/292)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 APRIL 2023

Proposed protected action ballot of employees of Graincorp Operations Limited

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 Graincorp Operations Limited (Respondent).

On 3 April 2023, 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 Sean Burke of the Applicant declared on 29 March 2023, 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 PR760865.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Workers' Union made an application to the Fair Work Commission under section 437 of the Fair Work Act 2009. The union sought a protected action ballot order for certain employees of Graincorp Operations Limited. The application was made in the context of a dispute over a proposed agreement, and the union sought to hold a ballot to determine whether its members would support protected action in pursuit of their bargaining objectives. Graincorp Operations Limited did not oppose the application, and the matter was determined on the papers without a hearing.

The primary legal issue for the Commission was whether the requirements for a protected action ballot under the Fair Work Act had been met. This involved assessing whether there was a notification time in relation to the proposed agreement and whether the union had genuinely tried to reach an agreement with the employer. The union had provided a statutory declaration outlining the steps taken in bargaining with Graincorp and its efforts to reach an agreement. The Commission had to determine whether these efforts were genuine and whether the statutory requirements for a ballot were satisfied.

After reviewing the material before it, the Fair Work Commission found that the union had genuinely tried to reach an agreement with Graincorp and that there was a notification time in relation to the proposed agreement. The Commission was satisfied that the requirements of section 443(1) of the Fair Work Act had been met. Consequently, the Commission determined to grant the union's application for a protected action ballot order. The decision was based on the union's statutory declaration and the absence of opposition from Graincorp. The Commission found that the union had fulfilled its obligations under the Act to seek agreement with the employer and had met the necessary criteria for a ballot.

The Fair Work Commission issued an order in PR760865, granting the Australian Workers' Union's application for a protected action ballot order. The union could proceed with holding a ballot among its members to determine their support for protected action in relation to the proposed agreement with Graincorp Operations Limited. The order was made in light of the union's demonstration of genuine bargaining efforts and compliance with the statutory requirements for a ballot under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established