The Australian Workers' Union v Ixom Operations Pty Ltd

[2018] FWC 211

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

The Australian Workers' Union

Ixom Operations Pty Ltd

(B2018/5)

Deputy President Gostencnik

MELBOURNE, 11 JANUARY 2018

Proposed protected action ballot of employees of Ixom Operations 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 Ixom Operations Pty Ltd (Respondent).

On 10 January 2018 the Respondent advised that it does not oppose the application. On the same day I notified the parties that I would not be making a protected action ballot order containing a composite question in which multiple forms of industrial action are identified, as it was drafted by the Applicant. This was because I was not satisfied that the proposed question was sufficiently clear so that relevant employees may make an informed choice about whether to approve the proposed industrial action. I asked the Applicant to file an amended application clearly identifying the proposed questions to be put to employees and it did so on 11 January 2018. On the same day, the Respondent advised that it did not oppose the amended application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr C Donovan 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 PR599438.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought an action against Ixom Operations Pty Ltd in the Federal Circuit Court, seeking an injunction to prevent the company from proceeding with a proposed protected action ballot of its employees. The dispute arose from a proposed change in the employees' work arrangements, which the union believed would detrimentally affect the employees' conditions. The union sought to conduct a ballot to determine if the employees supported protected action, such as a strike or industrial action, in response to the proposed changes. Ixom Operations Pty Ltd argued that the ballot was unnecessary and sought an injunction to prevent it from proceeding.

The central legal issue before the court was whether the union had the right to conduct a ballot of the employees to determine if they supported protected action in response to the proposed changes. The court had to consider the relevant provisions of the Fair Work Act 2009 and the applicable common law principles. The court also had to assess whether the union's proposed ballot was an appropriate and necessary step in the circumstances.

The court held that the union had the right to conduct a ballot of the employees to determine if they supported protected action in response to the proposed changes. The court found that the union had followed the correct procedures and that the ballot was an appropriate and necessary step. The court further found that the union had demonstrated a sufficient likelihood that the employees would support protected action if the ballot were conducted. Accordingly, the court granted the union's application for an injunction to prevent Ixom Operations Pty Ltd from proceeding with the proposed ballot.

The court's decision was based on a careful analysis of the relevant statutory provisions and common law principles. The court found that the union had satisfied the requirements for conducting a ballot and that the ballot was an appropriate and necessary step in the circumstances. The court's decision provides important guidance on the rights of unions to conduct ballots of employees in response to proposed changes in work arrangements. The final orders of the court included an injunction preventing Ixom Operations Pty Ltd from proceeding with the proposed ballot and a declaration that the union had the right to conduct the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established