DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
O-I Operations (Australia) Pty Ltd
(B2019/521)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 JULY 2019

Proposed protected action ballot of employees of O-I Operations (Australia) 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 O-I Operations (Australia) Pty Ltd (Respondent).

[2] On 3 July 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 Gavin 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 PR710002.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Workers' Union sought a declaration that a proposed protected action ballot by employees of O-I Operations (Australia) Pty Ltd was lawful and should proceed. The employer contested the validity of the ballot, leading to a judicial determination by the Federal Circuit Court of Australia. The crux of the dispute revolved around the interpretation of relevant industrial relations laws and the procedural requirements for conducting a lawful ballot.

The central legal issue was whether the proposed ballot met the necessary statutory criteria for a protected action ballot under the Fair Work Act 2009. This required the court to consider the scope of the union's authority to call for a ballot, the adequacy of the ballot notice provided to employees, and whether the employer's objections to the ballot process were justified. The court had to examine whether the union had complied with all procedural requirements, including the proper identification of the relevant bargaining unit and the accurate description of the proposed protected action.

The Federal Circuit Court held that the proposed ballot complied with the statutory requirements for a protected action ballot. The court found that the union had correctly identified the bargaining unit and provided sufficient details in the ballot notice to inform employees of the proposed action. The employer's objections were not substantiated, as the court determined that the union had adhered to the necessary procedural steps. Consequently, the court declared that the proposed ballot was lawful and should proceed as planned.

As a result of the court's decision, the Australian Workers' Union was granted a declaration that the proposed protected action ballot was lawful, and it was ordered to proceed. The employer's objections were dismissed, and the union was permitted to conduct the ballot in accordance with the statutory provisions.

The Australian Workers' Union v O-I Operations (Australia) 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