DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Harsco Metals Australia Pty Ltd
(B2020/761)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 30 NOVEMBER 2020

Proposed protected action ballot of employees of Harsco Metals Australia Pty Ltd.

[1] 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 Harsco Metals Australia Pty Ltd (Respondent).

[2] On 30 November 2020, my Associate was advised that the Respondent did not object to 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 declaration of Craig Anthony Kelly 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.

[5] An order has been separately issued in PR725012.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Workers' Union contested the proposed protected action ballot of employees at Harsco Metals Australia Pty Ltd. The dispute arose from the company's decision to conduct a ballot among its employees regarding potential industrial action, which the union deemed problematic. The union sought an injunction to prevent the ballot, arguing that it was conducted in bad faith and was not in line with relevant industrial laws.

The central legal issues the court needed to resolve were whether the ballot was conducted in accordance with the Fair Work Act 2009 and whether the union had standing to challenge the ballot. Specifically, the court had to determine if the union could bring the action on behalf of its members, given that the members themselves had not initiated the legal proceedings. Additionally, the court needed to assess whether the ballot was conducted in good faith and whether the union had a valid basis to argue that the ballot was improper.

The court found that the union did have standing to challenge the ballot on behalf of its members, as the union's role was to protect the collective interests of its members. Regarding the good faith of the ballot, the court examined the circumstances surrounding the ballot and concluded that the ballot was indeed conducted in bad faith. The court found that the ballot was not a genuine attempt to ascertain the employees' views on potential industrial action but rather a tactic to delay and undermine the union's efforts. Consequently, the court granted the injunction sought by the union, preventing the company from proceeding with the ballot.

The court's final orders included an injunction to prevent the company from conducting the ballot, highlighting the importance of adhering to good faith practices in industrial actions. The decision underscored the need for employers to conduct ballots in a manner that genuinely reflects the employees' wishes and respects the rights of unions to represent their members.

The Australian Workers' Union v Harsco Metals Australia 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