The Australian Workers' Union v Grange Resources (Tasmania) Pty Ltd T/A Grange Resources

[2023] FWC 1028

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Grange Resources (Tasmania) Pty Ltd T/A Grange Resources

(B2023/393)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 MAY 2023

Proposed protected action ballot of employees of Grange Resources

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 Grange Resources (Tasmania) Pty Ltd (Respondent).

On 1 May 2023, my Associate was advised that the Respondent did not object to 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 declaration of Mr Robert Flanagan 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.

An order has been separately issued in
PR761533.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (Applicant) applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot order concerning certain employees of Grange Resources (Tasmania) Pty Ltd (Respondent). The Applicant sought to conduct a ballot of its members employed by the Respondent regarding potential protected actions, including a strike or work stoppage. The Respondent did not object to the application. The matter was determined by Deputy President Clancy on 2 May 2023, on the papers submitted, without a hearing.

The central legal issue the FWC had to address was whether the Applicant had met the criteria for a protected action ballot as stipulated in section 443(1) of the Act. This includes ensuring that there was a notification time in relation to the proposed agreement and that the Applicant had been genuinely trying to reach an agreement with the Respondent. The Applicant submitted a declaration from Mr Robert Flanagan, outlining the steps taken in bargaining with the Respondent and affirming the union’s genuine efforts to reach an agreement.

Deputy President Clancy reviewed the declaration and the other materials before him. He found that the Applicant had indeed taken the necessary steps in bargaining and was genuinely attempting to reach an agreement with the Respondent. Additionally, the declaration confirmed that a notification time in relation to the proposed agreement was in effect. Thus, the Deputy President was satisfied that the requirements for a protected action ballot were met. The FWC issued an order in accordance with the application.

The FWC concluded that the Applicant had fulfilled the legal requirements for a protected action ballot. An order was issued in PR761533, permitting the Applicant to proceed with the ballot of its members.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established