The Australian Workers' Union v K&R Fabrications (W'Gong) Pty Ltd

[2022] FWC 1917

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

K&R Fabrications (W’Gong) Pty Ltd

(B2022/707)

VICE PRESIDENT CATANZARITI

SYDNEY, 21 JULY 2022

Proposed protected action ballot of employees of K&R Fabrications (W’Gong) 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 K&R Fabrications (W’Gong) Pty Ltd (Respondent).

On 20 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 Joe Hutchings of the Applicant declared on 17 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 PR744015.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, acting as the representative for certain employees of K&R Fabrications (W’Gong) Pty Ltd, applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. This application was made to facilitate a proposed industrial action ballot among the employees, presumably to address unresolved issues in their employment conditions. The Fair Work Commission, upon being informed that K&R Fabrications did not oppose the application, proceeded to determine the matter on the papers, without the need for a hearing.

The legal issues before the Commission were whether the union had fulfilled the notification requirements and had genuinely attempted to negotiate with the employer as stipulated under section 443(1) of the Act. The Commission needed to assess the union's statutory declaration, along with any other relevant materials, to determine if the conditions for a protected action ballot were met.

In its decision, the Vice President Catanzariti of the Fair Work Commission found that the union had indeed complied with the notification period and had been genuinely attempting to reach an agreement with the employer. Based on the evidence presented, the Commission was satisfied that the union had met the requirements of the Act, thereby granting the application for a protected action ballot order. The decision was made without a hearing, reflecting the straightforward nature of the application and the employer's lack of opposition.

No additional orders were made beyond the granting of the ballot order. The Commission issued an order separately, referenced in PR744015, to formally record the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established