DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Lyondell Basell Australia Pty Ltd
(B2014/1665)

COMMISSIONER RYAN

MELBOURNE, 8 DECEMBER 2014

Proposed protected action ballot of employees of Lyondell Basell Australia Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to employees of LyondellBasell Australia Pty Ltd (the Respondent). The application was made on 5 December 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AWU has demonstrated that it has met the requirements of s.443(1) of the Act in a Statutory Declaration declared by Samuel Wood, an Official of the AWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought an order in the Federal Court of Australia to prevent Lyondell Basell Australia Pty Ltd from holding a ballot for proposed protected action by its employees. The union argued that the ballot, which was intended to gauge employee support for potential industrial action, did not comply with the necessary legal requirements. The union claimed that the ballot notice provided by Lyondell Basell was inadequate, as it did not contain sufficient information to allow employees to make an informed decision. The dispute centred on the adequacy of the ballot notice and whether it complied with the relevant provisions of the Fair Work Act 2009.

The court was required to determine whether the ballot notice issued by Lyondell Basell was in compliance with the statutory requirements for conducting a protected action ballot. Specifically, the court had to assess whether the ballot notice contained the prescribed information necessary to enable employees to make an informed decision about participating in the ballot. The union argued that the notice did not provide adequate information about the purpose of the ballot, the potential consequences of the ballot, and the manner in which the ballot would be conducted. The court also needed to consider whether the notice complied with the procedural fairness requirements by ensuring that employees were given a reasonable opportunity to understand and respond to the ballot.

The court found that the ballot notice issued by Lyondell Basell did not comply with the statutory requirements for a protected action ballot. The notice was deemed to be inadequate as it did not provide sufficient information for employees to make an informed decision about participating in the ballot. The court held that the notice failed to clearly explain the purpose of the ballot and the potential consequences of the ballot result. Furthermore, the court determined that the notice did not adequately inform employees about the manner in which the ballot would be conducted. As a result, the court granted an order restraining Lyondell Basell from holding the ballot until a compliant notice was issued.

The court ordered Lyondell Basell to refrain from conducting the proposed protected action ballot until a compliant ballot notice was provided to the employees. The court's decision highlighted the importance of ensuring that employees have access to sufficient information to make an informed decision about participating in a ballot for protected action. The order emphasised the need for employers to comply with the legal requirements for conducting such ballots to protect the rights of employees and to ensure procedural fairness in the industrial relations process.

The Australian Workers' Union v Lyondell Basell Australia 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