The Australian Workers' Union v MSF Sugar Pty Ltd Summary

[2022] FWC 844

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

MSF Sugar Pty Ltd

(B2022/291)

VICE PRESIDENT CATANZARITI

BRISBANE, 12 APRIL 2022

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

On 11 April 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 Richard Billingham of the Applicant declared on 8 April 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 PR740302.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) filed an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning certain employees of MSF Sugar Pty Ltd. The AWU sought to conduct a ballot among the employees regarding potential protected action. MSF Sugar Pty Ltd did not oppose the application. The matter was determined by the Fair Work Commission without a hearing, based on the provided documentation, including a statutory declaration by Richard Billingham of the AWU confirming the union's genuine attempts to reach an agreement with MSF Sugar.

The primary legal issue before the Fair Work Commission was whether the AWU had fulfilled the statutory requirements to hold a protected action ballot. This included verifying if a notification period had been provided and if the conditions outlined in section 443(1) of the Fair Work Act were met. The AWU argued that it had been genuinely attempting to negotiate with MSF Sugar and had followed the necessary procedural steps as stipulated by the Act.

The Commission found that the AWU had satisfied the conditions for a protected action ballot. The evidence presented, particularly the statutory declaration, demonstrated that the union had engaged in good faith negotiations and complied with the notification requirements. Given that MSF Sugar did not contest the application and the AWU had fulfilled the statutory prerequisites, the Commission granted the application for a protected action ballot.

An order was issued separately in PR740302, allowing the AWU to proceed with the ballot as per the Fair Work Act. This decision underscores the importance of unions following proper procedures and engaging in genuine negotiations before seeking to conduct protected action ballots.

The Australian Workers' Union v MSF Sugar Pty Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established