The Australian Workers' Union v Noble Drilling Australia Pty Ltd

[2023] FWC 1197

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union

Noble Drilling Australia Pty Ltd

(B2023/463)

VICE PRESIDENT CATANZARITI

SYDNEY, 19 MAY 2023

Proposed protected action ballot of employees of Noble Drilling Australia 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 Noble Drilling Australia Pty Ltd (Respondent).

On 18 May 2023, 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 Jason John Lipscombe of the Applicant declared on 16 May 2023, 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 PR762085.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers’ Union filed an application with the Fair Work Commission under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning specific employees of Noble Drilling Australia Pty Ltd. The application was made in the context of ongoing negotiations between the union and the employer. The union aimed to conduct a ballot to potentially authorise protected industrial action due to an impasse in bargaining. On 18 May 2023, Noble Drilling Australia Pty Ltd did not oppose the union’s application. The case was adjudicated by Vice President Catanzariti on the same day without a hearing, relying on the submissions and evidence provided in writing.

The primary legal issue before the court was whether the union had fulfilled the statutory requirements to proceed with a ballot for protected industrial action. Specifically, the court needed to ascertain if there was a notification period as required by section 443(1) of the Fair Work Act and whether the union had genuinely attempted to reach an agreement with the employer. The union argued that it had engaged in good faith negotiations and complied with the necessary procedures before seeking the protected action ballot. The employer did not contest the application, which facilitated the court's decision-making process.

After reviewing the statutory declaration by Jason John Lipscombe of the union, Vice President Catanzariti determined that the union had indeed satisfied the notification period and had genuinely attempted to reach an agreement with the employer. The Vice President was satisfied that the union had met the requirements of section 443(1) of the Fair Work Act, thereby granting the application for a protected action ballot. Consequently, an order was issued in PR762085, allowing the union to proceed with the ballot as requested.

The Fair Work Commission, through Vice President Catanzariti, issued an order in PR762085, permitting the Australian Workers’ Union to conduct a protected action ballot among the specified employees of Noble Drilling Australia Pty Ltd. The decision was based on the union’s compliance with the notification period and its good faith efforts to negotiate with the employer. The employer’s lack of opposition to the application further supported the grant of the ballot order. This decision underscores the importance of following statutory requirements and genuine negotiation efforts in the context of industrial relations disputes under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established