The Australian Workers' Union v Icon Water Pty Ltd

[2022] FWC 1993

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

Icon Water Pty Ltd

(B2022/1140)

VICE PRESIDENT CATANZARITI

SYDNEY, 27 JULY 2022

Proposed protected action ballot of employees of Icon Water 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 Icon Water Pty Ltd (Respondent).

On 26 July 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 Darren Cameron of the Applicant declared on 25 July 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 PR744260.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union filed an application under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of Icon Water Pty Ltd. The union aimed to conduct a ballot among its members to determine their willingness to take protected action in response to ongoing disputes with Icon Water Pty Ltd over certain employment terms and conditions. The application was made to the Fair Work Commission, which is the body tasked with resolving such disputes under Australian labour law.

The legal issues before the Fair Work Commission included whether the union had genuinely attempted to negotiate in good faith with Icon Water Pty Ltd and whether the requirements set out in section 443(1) of the Fair Work Act had been fulfilled. These requirements are a critical component of the process for protected action, ensuring that the union has exhausted all reasonable avenues for negotiation before resorting to industrial action. The union's application was predicated on its assertion that it had met these conditions, and the Commission needed to verify these claims based on the evidence provided.

In making its decision, the Fair Work Commission reviewed the statutory declaration submitted by Darren Cameron of the Australian Workers’ Union, which outlined the union's efforts to negotiate with Icon Water Pty Ltd. The Commission found that the union had indeed taken the necessary steps and had been genuinely attempting to reach an agreement. Furthermore, the Commission was satisfied that the notification period stipulated in the Act had been adhered to, thus fulfilling the legal prerequisites for proceeding with a ballot for protected action. Consequently, the application was approved, and an order was issued accordingly.

The Fair Work Commission's decision was to grant the Australian Workers’ Union's application for a protected action ballot order, thereby allowing the union to proceed with its proposed industrial action. The decision underscores the importance of good faith negotiations and adherence to legal procedures in labour disputes, ensuring that the rights of both employers and employees are protected.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established