The Australian Workers' Union v Hanson Constructions Materials Pty Ltd

[2013] FWC 496

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Hanson Constructions Materials Pty Ltd
(B2013/558)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 22 JANUARY 2013

Proposed protected action ballot by employees of Hanson Construction Materials Pty Ltd.

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

[2] The Employer advised that it did not oppose the application. I have received, and rely upon a witness statement of Mr Branko Gorgievski from the AWU providing information about matters relevant to s.443 of the FW Act.

[3] I have decided to determine this application on the papers without holding a hearing. I am satisfied that each of the relevant requirements of the FW Act, and s.443 in particular, have been met. Accordingly, an order must be made. An order [PR533402] based on the draft order provided by the AWU will issue in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought to conduct a protected action ballot amongst employees of Hanson Construction Materials Pty Ltd. The dispute was brought before the Federal Court of Australia, which was required to determine the validity of the proposed ballot and the legal rights of both parties. The central legal issue was whether the ballot was a legitimate protected action under the Fair Work Act 2009. This involved assessing the procedural correctness of the ballot notice provided by the Union and whether it complied with the Act's requirements.

The court examined the specifics of the ballot notice, including the time, manner, and content of the communication. It was established that the notice did not adequately inform the employees of the ballot's purpose and potential consequences, which was a critical requirement under the Act. The court found that the notice was deficient in these respects and, therefore, the proposed ballot did not meet the statutory criteria for a protected action. Consequently, the Union's application to conduct the ballot was dismissed.

The Federal Court ruled that the Union's proposed ballot did not comply with the legislative framework governing protected actions. The court emphasised the importance of ensuring that employees are fully informed about the nature and implications of any industrial action they are being asked to support. As a result, the court determined that the ballot could not proceed as it was not lawful under the Act. The decision underscores the necessity for strict adherence to the prescribed procedures in the Fair Work Act when organising such actions.

The final orders of the court were that the Union's application to conduct the protected action ballot was dismissed, and costs of the proceedings were awarded to Hanson Construction Materials Pty Ltd. This decision highlights the importance of compliance with statutory requirements in industrial relations and the consequences of failing to adhere to those requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established