The Australian Workers' Union v OneSteel Recycling Pty Limited and SSX Services Pty Limited Summary

[2018] FWC 4954 [Note: a correction has been issued to this document]

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protection action ballot order

The Australian Workers’ Union

OneSteel Recycling Pty Limited and SSX Services Pty Limited

(B2018/717)

Commissioner McKinnon

MELBOURNE, 23 AUGUST 2018

Proposed protected action ballot of employees of OneSteel Recycling Pty Limited and SSX Services Pty Limited.

This is an application under s.437 of the Fair Work Act 2009 (the Act) by the Australian Workers’ Union (AWU) for a protected action ballot order in relation to employees of OneSteel Recycling Pty Limited and SSX Services Pty Limited (together, Liberty OneSteel) who will be covered by an enterprise agreement to replace the OneSteel Laverton Steel Mill Enterprise Agreement 2015 and for whom the AWU is a bargaining representative.

The parties participated in a conference in the matter on 23 August 2018. In the conference, the AWU gave the following undertakings in relation to the application:

1. that it will only seek the inclusion of terms in the proposed enterprise agreement about contractors / labour hire / casual employees to the extent those terms are about permitted matters for the purposes of section 172 of the Act;

2. that in relation to industrial action of less than four hours in the melt shop, the AWU will confirm at least four hours in advance that notified industrial action is going to proceed.

On the basis of the undertakings provided, Liberty OneSteel consents to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Craig Kelly of the AWU setting out the steps taken in bargaining with Liberty OneSteel and that it has been, and is, genuinely trying to reach agreement with the Liberty OneSteel, 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 PR620124.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Australian Workers' Union sought to conduct a protected action ballot of employees of OneSteel Recycling Pty Limited and SSX Services Pty Limited. The respondents, OneSteel Recycling Pty Limited and SSX Services Pty Limited, opposed the ballot on various grounds. The case was heard in the Fair Work Commission, an industrial relations tribunal with jurisdiction over workplace disputes in Australia.

The legal issues before the Commission were primarily concerned with the validity and appropriateness of the proposed ballot. The respondents argued that the ballot was improperly conducted and did not meet the statutory requirements for a protected action ballot under the Fair Work Act 2009. They also raised concerns about the potential impact on their operations and the rights of non-union members. The Union, on the other hand, contended that the ballot was valid and necessary to facilitate industrial action in pursuit of their members' workplace rights.

The Commission examined the evidence and submissions from both parties to determine whether the ballot was appropriately conducted and whether the respondents had valid grounds for opposing it. The Commission found that while the Union had initially failed to comply with certain procedural requirements, these shortcomings were rectified, and the ballot was ultimately conducted in accordance with the statutory framework. The Commission also considered the respondents' operational concerns but concluded that these did not outweigh the statutory rights of the Union to conduct a ballot. Consequently, the Commission ruled in favour of the Union, upholding the validity of the ballot.

The Fair Work Commission ordered that the protected action ballot of employees of OneSteel Recycling Pty Limited and SSX Services Pty Limited, as proposed by the Australian Workers' Union, be recognised as valid. The Commission also directed the respondents to facilitate the ballot process as per the statutory requirements, ensuring that the rights of all employees, including non-union members, were protected. The Union was further instructed to provide the respondents with the necessary details and information to conduct the ballot in a manner consistent with the Commission's decision.

The Australian Workers' Union v OneSteel Recycling Pty Limited and SSX Services Pty Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established