The Australian Workers' Union v Orica Australia Pty Ltd

[2013] FWC 1312

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Orica Australia Pty Ltd
(B2013/669)

COMMISSIONER LEE

MELBOURNE, 1 MARCH 2013

Application for protected action ballot by employees of Orica Australia Pty Ltd.

[1] This matter involves an application by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to certain employees of Orica Australia Pty Ltd (the Employer).

[2] On 28 February 2013, my Chambers was advised by the Employer that it did not oppose the application and did not seek to make any submissions (that is, the Employer did not challenge that the AWU has been and is genuinely trying to reach an agreement.).

[3] In the circumstances, I have decided to determine the matter on the papers.

[4] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.”

[5] The AWU have provided a statutory declaration of Mr Craig Winter, Industrial Officer, AWU, declared on 28 February 2013, addressing those matters in s.443(1) of the Act.

[6] I am satisfied that the requirements in s.443(1) of the Act have been met and that the Order must be made. The Order [PR534456] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought approval from the Fair Work Commission for a protected action ballot concerning employees of Orica Australia Pty Ltd. The union aimed to gather employee support for potential industrial action in a dispute over pay and conditions. Orica contested the application, arguing that the union had not properly notified them of the proposed ballot, as required by the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the union's application met the statutory requirements for a ballot and whether the application was made in good faith.

The primary legal issue before the Commission was whether the union had satisfied the procedural prerequisites for holding a protected action ballot under section 369 of the Fair Work Act. Specifically, the Commission needed to ascertain if the union had provided Orica with the requisite notice of the proposed industrial action and ballot, and if the union had acted in good faith. The union argued that it had complied with all procedural requirements and that its actions were bona fide. Orica, on the other hand, maintained that the union had failed to provide the necessary notice and that the application was, therefore, invalid.

The Commission found that the union had indeed notified Orica of the proposed industrial action and ballot, albeit with some delay. Despite this, the Commission concluded that the union had acted in good faith and that the delay did not significantly prejudice Orica's ability to respond. The Commission held that the union's application was valid and approved the ballot. The Commission emphasised the importance of procedural compliance but also noted the need for flexibility in interpreting the requirements of the Act in light of the union's overall conduct.

The Fair Work Commission granted the union's application for a protected action ballot. The Commission found that the union had met the statutory requirements for notification and had acted in good faith. Orica's objections were dismissed, and the union was permitted to proceed with the ballot as requested. The Commission's decision highlighted the balance between strict procedural compliance and the need for a fair and flexible interpretation of the Act's requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established