DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
National Masonry Pty Ltd
(B2020/734)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 NOVEMBER 2020

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

[2] On 19 November 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of David Swan 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 PR724724.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed protected action ballot of employees of National Masonry Pty Ltd was lawful. The dispute arose in the Federal Court of Australia. The Union contended that the ballot, which sought to authorise industrial action in response to the employer's decision to implement a new payment system, was conducted in accordance with the Fair Work Act 2009. National Masonry Pty Ltd argued that the ballot was invalid as it failed to comply with the procedural requirements set out in the Act.

The primary legal issues before the court were whether the ballot complied with the provisions of the Act and, if not, whether the court should intervene to rectify the situation. The court had to determine if the ballot adhered to the necessary procedural steps, including the correct timing, the provision of relevant information to the employees, and the fairness of the process. Additionally, the court needed to assess if the failure to comply with the Act's requirements invalidated the entire ballot process or if it was permissible to remedy the defects.

The court examined the Act's provisions and found that while the ballot was generally well-conducted, there were minor procedural deficiencies. The court acknowledged that the employer had acted in good faith and that the employees were adequately informed about the ballot. However, the court held that the employer had not provided the employees with a summary of the proposed changes in a timely manner, which was a requirement under the Act. Despite these shortcomings, the court found that the procedural errors did not significantly impact the fairness or validity of the ballot. Consequently, the court granted the Union's application for a declaration of lawfulness, while also directing the employer to remedy the procedural errors in future ballots.

No further orders were made by the court beyond the declaration and direction to remedy future procedural errors.

The Australian Workers' Union v National Masonry 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