DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Metromix Pty Ltd
(B2019/49)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 21 JANUARY 2019

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

[2] On 18 January 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 P Murray 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 PR703986.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that the employees of Metromix Pty Ltd were engaged in protected action in relation to a proposed ballot for industrial action. The Federal Court was tasked with determining whether the industrial action proposed by the union was protected action under the Fair Work Act 2009. The dispute centred on whether the proposed industrial action, which involved a ballot of employees for potential future action, constituted protected action as defined by the Act. The court had to consider the nature of the ballot and whether it fell within the scope of activities protected by the Act. The union argued that the ballot itself was protected action, while Metromix contended that the ballot did not constitute protected action until actual industrial action was taken.

The court examined the statutory provisions defining protected action and the legal precedents interpreting these provisions. It noted that protected action typically involves actual industrial action, such as a strike or lockout, rather than preparatory steps like a ballot. The court found that a ballot for industrial action, by itself, does not constitute protected action. Instead, it is a preliminary step towards potential future protected action. The court held that until actual industrial action is undertaken, the ballot does not qualify as protected action under the Act. This interpretation aligns with the legislative intent to balance the rights of employees to take industrial action with the need to protect the interests of employers and the broader economy.

Consequently, the court ruled that the proposed ballot of employees for potential future industrial action did not, by itself, constitute protected action under the Fair Work Act 2009. The union's application for a declaration that the proposed ballot was protected action was dismissed. The court's decision clarified the legal status of ballots for industrial action, reinforcing that such ballots are not protected action until actual industrial action is taken. This ruling provides guidance for both employers and unions in understanding the scope of protected action under the Act.

The Australian Workers' Union v Metromix 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