The Australian Workers' Union v Holcim (Australia) Pty Ltd

[2022] FWC 1006

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Holcim (Australia) Pty Ltd

(B2022/375)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 3 MAY 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 (Act) for a protected action ballot order in relation to certain employees of Holcim (Australia) Pty Ltd (the Respondent).

On 3 May 2022, 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 Rob Saunders 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 PR741166.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union (the Union) applied to the Fair Work Commission for an order under section 437 of the Fair Work Act 2009 (the Act) for a protected action ballot in relation to employees of Holcim (Australia) Pty Ltd (the Employer). The Union sought the order in response to its negotiations with the Employer over a proposed enterprise agreement, which negotiations had reached an impasse. The Employer did not object to the Union's application. The Union contended that it had genuinely tried to reach an agreement with the Employer but had been unable to do so, and that a ballot of employees should therefore be held to allow them to decide whether to take protected action.

The issue for the Fair Work Commission was whether it was satisfied that the Union had genuinely tried to reach agreement with the Employer over the proposed agreement, and that the requirements for a ballot to be held under the Act had been met. The Union submitted that it had genuinely tried to reach agreement with the Employer but had been unable to do so, and that a ballot should be held to allow employees to decide whether to take protected action. The Employer did not object to the application.

The Fair Work Commission determined the matter on the papers and concluded that it was satisfied that the Union had genuinely tried to reach agreement with the Employer and that the requirements for a ballot to be held had been met. The Fair Work Commission noted that the Union had provided a declaration from a representative stating that it had been, and was, genuinely trying to reach agreement with the Employer over the proposed agreement. The Fair Work Commission also noted that the Union had provided evidence of the steps it had taken in bargaining with the Employer, and that the Employer did not object to the application. The Fair Work Commission therefore made the order sought by the Union.

The Fair Work Commission issued an order under section 437 of the Act for a protected action ballot to be held in relation to the employees of the Employer. The order provides for the ballot to be held by the Fair Work Commission, and sets out the procedures for the ballot, including the period during which the ballot must be held, the notice that must be given to employees, and the manner in which the ballot must be conducted. The order also provides for the protection of employees who participate in the ballot from adverse action by the Employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established