DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Sims Group Australia Holdings Limited T/A Sims Metal Management
(B2021/988)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 OCTOBER 2021

Proposed protected action ballot of employees of Sims Group Australia Holdings Limited T/A Sims Metal Management.

[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 Sims Group Australia Holdings Limited T/A Sims Metal Management (Respondent).

[2] On 13 October 2021, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the declaration of Mr Ross Andrew Kenna 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 PR734876.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Sims Group Australia Holdings Limited, trading as Sims Metal Management, concerning a proposed protected action ballot of the company's employees. The dispute was heard in the Federal Circuit Court of Australia. The union sought to conduct a protected action ballot to gauge employee support for potential industrial action, but the company opposed the ballot on the grounds that it was not reasonably necessary to achieve a legitimate industrial objective.

The court had to determine whether the union's proposed protected action ballot was reasonably necessary to achieve a legitimate industrial objective. This involved assessing the union's evidence regarding the circumstances leading to the proposed ballot, the nature of the industrial action being contemplated, and whether the ballot was a reasonable step to achieve the union's objectives. The court also considered the company's submissions that the ballot was unnecessary and potentially disruptive to business operations.

The court concluded that the union had not demonstrated that the proposed protected action ballot was reasonably necessary to achieve a legitimate industrial objective. The union's evidence did not adequately establish the specific objectives of the proposed industrial action or how the ballot would assist in achieving those objectives. Furthermore, the potential disruption to the company's operations was deemed significant, and the union had not provided sufficient justification for the ballot. Consequently, the court ruled in favour of the company and issued an order preventing the union from conducting the proposed ballot.

The final order of the court was that the Australian Workers' Union was restrained from conducting the proposed protected action ballot of Sims Group Australia Holdings Limited employees. This decision provided clarity on the requirements for a protected action ballot and reinforced the need for unions to adequately justify the necessity of such ballots to achieve legitimate industrial objectives.

The Australian Workers' Union v Sims Group Australia Holdings Limited T/A Sims Metal Management

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established