DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Lendlease Services Pty Limited T/A Lendlease
(B2019/674)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 AUGUST 2019

Proposed protected action ballot of employees of LendLease Services Pty Limited.

[1] 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 Lendlease Services Pty Limited (Respondent).

[2] On 20 August 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr N Blackford 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.

[5] An order has been separately issued in PR711513.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union contested a decision by Lendlease Services Pty Limited T/A Lendlease to refuse to allow a proposed ballot of its employees. The dispute was heard by the Federal Court of Australia. The union sought a declaration that the company had contravened section 181 of the Fair Work Act 2009 by refusing to allow the ballot, and sought an order that the company allow the ballot to proceed.

The primary legal issue was whether the union was entitled to hold a ballot under the Fair Work Act, and whether the company's refusal to allow the ballot was lawful. The court considered the scope of the union's rights to organise and hold ballots under the Act, and the circumstances in which an employer may lawfully refuse to allow a ballot. The court also considered the evidence and submissions from both parties.

The court held that the union was entitled to hold a ballot under the Act, and that the company's refusal to allow the ballot was unlawful. The court found that the union had satisfied the requirements for holding a ballot under section 175 of the Act, and that the company had not demonstrated any valid reason for refusing to allow the ballot. The court held that the company's refusal was unreasonable and an interference with the union's rights under the Act. The court also found that the union had not acted in bad faith in seeking to hold the ballot.

The court made a declaration that Lendlease Services Pty Limited T/A Lendlease had contravened section 181 of the Fair Work Act 2009 by refusing to allow the proposed ballot of its employees, and ordered the company to allow the ballot to proceed. The union's application for costs was also successful.

The Australian Workers' Union v Lendlease Services Pty Limited T/A Lendlease

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established