The Australian Workers' Union v Huon Aquaculture Pty Ltd

[2022] FWC 1194

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Huon Aquaculture Pty Ltd

(B2022/431)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 16 MAY 2022

Proposed protected action ballot of employees of Huon Aquaculture 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 Huon Aquaculture Pty Ltd (the Respondent).

On 13 May 2022, my Associate was advised that the Respondent objected to the application.

On 16 May 2022 I held a hearing where the parties advised that there were able to reach a consent position and the Respondent withdrew its objection.

In the circumstances, I have decided to determine the matter on the papers.

On the basis of the material before me, including the declaration of Robert Flanagan 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 PR741675.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application under section 437 of the Fair Work Act 2009 with the Fair Work Commission, seeking a protected action ballot order for certain employees of Huon Aquaculture Pty Ltd. The application was made due to the AWU's efforts to reach an agreement with the respondent through bargaining. The respondent initially objected to the application but later withdrew its objection, leading to the case being determined on the papers presented.

The primary legal issue the Fair Work Commission had to decide was whether the AWU had met the requirements under section 443(1) of the Fair Work Act to hold a protected action ballot. The AWU argued that it had genuinely attempted to reach an agreement with Huon Aquaculture Pty Ltd and that the necessary notification time for the proposed agreement had elapsed. The Commission needed to assess the evidence provided, particularly the declaration from Robert Flanagan of the AWU, which outlined the bargaining process and the union's efforts to reach an agreement.

In assessing the matter, Deputy President Clancy considered the material presented, including the declaration of Robert Flanagan. The declaration detailed the steps taken by the AWU in bargaining with Huon Aquaculture Pty Ltd and confirmed that the union had been genuinely attempting to reach an agreement. The Commission was satisfied that the notification time for the proposed agreement had been met and that the requirements under section 443(1) of the Act were fulfilled. Consequently, the Deputy President decided to grant the AWU's application.

The Fair Work Commission issued an order permitting the AWU to proceed with the protected action ballot for the employees of Huon Aquaculture Pty Ltd, as set out in PR741675. This decision enabled the union to take appropriate action in accordance with the Fair Work Act, following the completion of the necessary notification period and the fulfillment of legal requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established