The Australian Workers' Union v Holcim Australia Pty Ltd

[2022] FWC 3242

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Holcim Australia Pty Ltd

(B2022/1792)

VICE PRESIDENT CATANZARITI

MELBOURNE, 8 DECEMBER 2022

Proposed protected action ballot of employees of Holcim Australia Pty Ltd

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 Holcim Australia Pty Ltd (Respondent).

On 7 December 2022, 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 Tegan Drage of the Applicant declared on 2 December 2022, 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 PR748720.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union applied to the Fair Work Commission for a protected action ballot order in relation to certain employees of Holcim Australia Pty Ltd. The Commission was advised that Holcim did not oppose the application. The Vice President determined the matter on the papers without holding a hearing, considering the statutory declaration by the Union and its efforts in bargaining with Holcim. The Union satisfied the Commission that it had been genuinely trying to reach an agreement with Holcim and that there was a notification time in relation to the proposed agreement.

The legal issues involved whether the Union had genuinely been trying to reach agreement with Holcim and whether the requirements under s.443(1) of the Fair Work Act 2009 had been met. The Vice President found that the Union had met these requirements. The Union's declaration and the evidence presented demonstrated its genuine efforts to negotiate with Holcim and its compliance with the notification time required by the Act. Holcim did not oppose the application, which further supported the Union's position.

Given the findings, the Vice President issued an Order in accordance with the Union's application. The decision underscored the importance of the Union's genuine attempts to reach an agreement and its adherence to the statutory notification requirements. The Commission's decision was based on the material presented and the absence of opposition from Holcim.

The final order, issued separately, granted the Union the authority to proceed with the protected action ballot as requested. The decision highlighted the Commission's role in ensuring that the processes for protected action are properly followed and that unions and employers engage in good faith negotiations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established