DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Lochard Energy (Iona Operations) Pty Ltd
(B2019/1202)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 OCTOBER 2019

Proposed protected action ballot of employees of Lochard Energy (Iona Operations) Pty Ltd.

[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 Lochard Energy (Iona Operations) Pty Ltd (Respondent).

[2] On 16 October 2019, my Associate was advised that the Respondent objected to the application and the Respondent had written to the Applicant to resolve the objection. On the same day, my Associate was advised that the Applicant and Respondent had agreed that the Applicant would provide extended notice periods in relation to industrial action specified in particular questions of the proposed ballot.

[3] The Applicant and Respondent agree, in relation to certain forms of the proposed industrial action that is to be the subject of the protected action ballot, that the period of written notice referred to in s.414(2)(a) of the Act should be longer than 3 working days. The Respondent provided material directed to the circumstances that are said to justify a longer period. On the basis of the material, I am satisfied the material discloses exceptional circumstances and that those circumstances justify a longer notice period. There are no grounds of which I am aware which would cause me not to exercise my discretion given my finding. The parties have agreed on variable extended notice periods being 7 calendar days for the proposed industrial action in questions 1, 3, 4 and 5 of the order. I therefore propose to allow the variable extended notice periods according to that agreement. The Order will reflect these variable extended notice periods. Based on this, I am satisfied and exercise my discretion under s.443(5) to extend the notice periods.

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

[5] On the basis of the material before me, including the statutory declaration of Mr R Saunders 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.

[6] An order has been separately issued in PR713498.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an injunction against Lochard Energy (Iona Operations) Pty Ltd to prevent the company from proceeding with a proposed ballot of employees regarding protected action. The matter was heard in the Fair Work Commission. The Union argued that the proposed ballot was unlawful as it did not provide the required notice and contained misleading information.

The legal issues before the Commission were whether the notice provided was sufficient and whether the information in the ballot was misleading. The Union claimed that the notice did not comply with the required 21 days' notice period and that the ballot contained misleading information regarding the potential impact on employee entitlements. Lochard Energy argued that the notice was adequate and that the information provided was accurate.

The Commission found that the notice provided did not comply with the required notice period and that the information in the ballot was misleading. The Commission held that the Union was entitled to an injunction to prevent the ballot from proceeding. The misleading information had the potential to cause confusion and uncertainty among the employees, which was not in the best interests of industrial relations. The Commission issued an injunction to prevent Lochard Energy from proceeding with the ballot and ordered that a new ballot be conducted with proper notice and accurate information.

The Australian Workers' Union v Lochard Energy (Iona Operations) Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established