DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
Norstar Recycling Pty. Ltd.
(B2018/344)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 8 MAY 2018

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

[2] On 8 May 2018 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 G Penn 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 PR606905.

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 Norstar Recycling Pty Ltd was not unlawful. The case was heard in the Fair Work Commission. The union argued that the ballot was a protected action, protected under section 363 of the Fair Work Act, and therefore lawful. The employer contended that the ballot was not protected because it was not part of a bargaining process and did not concern a matter of adverse action.

The legal issue before the Commission was whether the proposed protected action ballot was lawful under section 363 of the Fair Work Act. This required an interpretation of the scope of what constitutes protected action and whether the ballot in question fell within the protection afforded by the legislation. The Commission had to consider whether the ballot was part of a bargaining process and whether it concerned a matter of adverse action, as these were critical elements in determining the lawfulness of the ballot.

The Commission determined that the proposed protected action ballot was lawful. It found that the ballot was part of a bargaining process and concerned a matter of adverse action. The Commission held that the union's right to organise and conduct protected action was not limited to formal collective bargaining processes, but also included other forms of organising and action, such as a ballot. The employer's contention that the ballot was not protected because it did not relate directly to a bargaining process was rejected. The Commission emphasised the importance of protecting the right to organise and the right to take protected action as fundamental to the operation of the industrial relations system.

The Commission made a declaration that the proposed protected action ballot of employees of Norstar Recycling Pty Ltd was lawful. This decision reinforced the rights of unions to organise and conduct protected action, provided that the action related to a matter of adverse action and was part of a broader bargaining process. The employer was required to allow the ballot to proceed as planned.

The Australian Workers' Union v Norstar Recycling 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