DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Hanson Construction Materials Pty Ltd
(B2020/750)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 NOVEMBER 2020

Proposed protected action ballot of employees of Hanson Construction Materials Pty 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 Hanson Construction Materials Pty Ltd (Respondent).

[2] On 26 November 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 declaration of Cameron Wright of the Applicant declared on 23 November 2020, 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.

[5] An Order has been separately issued in PR724974.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members, brought proceedings against Hanson Construction Materials Pty Ltd in the Fair Work Commission. The Union sought authorisation for a protected action ballot, intending to inform employees about potential industrial action due to ongoing disputes over pay and conditions. Hanson Construction Materials Pty Ltd opposed the ballot, arguing that it was premature and not in line with the statutory requirements for protected actions. The Fair Work Commission was tasked with determining whether the Union's proposed ballot met the criteria set out in the Fair Work Act 2009.

The legal issues before the Commission centred on whether the Union had complied with the procedural prerequisites for a protected action ballot. This included verifying whether the dispute had been in existence for a sufficient period, whether the Union had made genuine efforts to resolve the dispute through conciliation or negotiation, and whether the ballot notice provided adequate information to employees. Additionally, the court had to consider if the proposed industrial action was reasonably likely to occur and whether the ballot was a proportionate response to the circumstances.

The Fair Work Commission assessed the evidence and submissions from both parties. It found that the Union had made reasonable efforts to resolve the dispute through conciliation and that the dispute had existed for a sufficient duration. The Commission determined that the proposed ballot notice adequately informed employees and that the industrial action was reasonably likely to occur. The Commission concluded that the Union's proposed ballot met the statutory requirements and authorised the ballot. Hanson Construction Materials Pty Ltd's opposition was dismissed.

The Australian Workers' Union v Hanson Construction Materials Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established