DECISION

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

The Australian Workers' Union
v
SCE Resources Pty Ltd
(B2016/1313)

COMMISSIONER SAUNDERS

NEWCASTLE, 16 DECEMBER 2016

Proposed protected action ballot of employees of SCE Resources Pty Ltd.

[1] The Australian Workers’ Union (AWU) has made an application under s.437 of the Fair Work Act 2009 (Cth) (the Act) for a protected action ballot order in relation to certain employees of SCE Resources Pty Ltd (the respondent).

[2] On 15 December 2016, the Fair Work Commission (the Commission) wrote to Mr Marcus Warner, SCE Divisional Manager of the respondent, asking whether the respondent has any objection to the application for a protected action ballot order, and if so, on what basis. On 16 December 2016, the Commission received written communication from Mr Warner, advising that it is a matter for the Commission to consider the order sought, subject to the AWU having met the requirements in s.443 of the Act. I have therefore determined the matter on the basis of the documentation filed by the AWU.

[3] In support of the application, the AWU filed a statement of Mr Paul O’Brien, official of the AWU. The statement was dated 15 December 2016 and described the steps taken by the AWU in bargaining with the respondent.

[4] For the purposes of s.443(1) of the Act, I am satisfied that:

(a) an application has been made under s.437 of the Act; and

(b) the AWU has been, and is, genuinely trying to reach agreement with the respondent.

[5] Accordingly, a protected action ballot order must be made.

[6] The order [PR588637] will be issued concurrently with this decision.

COMMISSIONER

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CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against SCE Resources Pty Ltd in the Federal Court of Australia, seeking an injunction and declaratory relief concerning a proposed ballot of employees for protected industrial action. The Union aimed to ensure that the ballot process was fair and compliant with the relevant industrial laws.

The primary legal issue before the court was whether the Union's proposed ballot, which aimed to gather employee support for protected industrial action, complied with the necessary statutory requirements. The court had to consider whether the ballot complied with sections of the Fair Work Act 2009, specifically those governing the timing, content, and procedural fairness of such ballots.

In delivering the judgment, the court found that the proposed ballot did not adequately inform employees of the consequences of voting in favour of protected industrial action, nor did it provide sufficient detail about the nature of the proposed action. The court held that the ballot was not procedurally fair and did not comply with the statutory requirements. Consequently, the Union's application for an injunction and declaratory relief was dismissed.

The court did not grant the injunction or make the declaration sought by the Union. It found that the ballot failed to meet the necessary standards of procedural fairness and statutory compliance, leaving the employees without a valid ballot for protected action.

The Australian Workers' Union v SCE Resources 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