The Australian Workers' Union v Skilled Group Limited Summary

[2013] FWC 397

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Skilled Group Limited
(B2013/548)

COMMISSIONER RYAN

MELBOURNE, 18 JANUARY 2013

Proposed protected action ballot by employees of Skilled Engineering.

[1] This is an application for a protected action ballot of members of The Australian Workers’ Union (AWU) employed by Skilled Group Limited (Skilled) and working at the Impact Fertilisers Pty Ltd Derwent Park Road site.

[2] Mr Paul Borobokas, General Manager Workplace Relations for Skilled, advised my chambers by email on 17 January 2013 that the company does not oppose this application and that the AWU has been genuinely trying to reach agreement with Skilled.

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

[4] I am satisfied that the requirements in s.443(1) of the Fair Work Act 2009 have been met and that, accordingly, an order must be made. An order based on the draft order provided by the AWU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, on behalf of certain employees of Skilled Engineering, a subsidiary of Skilled Group Limited, brought proceedings in the Federal Court of Australia against the employer, seeking authorisation to hold a ballot for protected action. The employees were seeking to take protected action in relation to enterprise bargaining and wanted to ensure that the proposed ballot complied with the Fair Work Act 2009. The Federal Court was tasked with determining whether the proposed ballot met the requirements of the Act.

The primary legal issue before the court was whether the proposed ballot complied with the procedural requirements set out in the Fair Work Act 2009. Specifically, the court had to consider whether the union's ballot notice and the proposed ballot met the criteria for authorisation under section 393 of the Act. The court also had to assess whether the union had provided the employer with sufficient particulars about the proposed action and whether the ballot was conducted in a manner that complied with the Act.

The court held that the proposed ballot did not comply with the requirements of the Fair Work Act 2009. The union's ballot notice did not provide sufficient detail about the proposed action, and the ballot itself did not comply with the procedural requirements of the Act. The court found that the union had not provided the employer with sufficient particulars about the proposed action, and that the ballot did not meet the criteria for authorisation under section 393 of the Act. Consequently, the court refused to authorise the proposed ballot. The court's decision was based on the procedural deficiencies in the union's ballot notice and the ballot itself, rather than on any substantive objections to the proposed action.

The court's final orders were that the proposed ballot for protected action by the employees of Skilled Engineering was not authorised. The union was directed to take all necessary steps to ensure that any future ballot complied with the requirements of the Fair Work Act 2009. The employer was directed to provide the union with any relevant information that it had not already provided, in order to assist the union in preparing a compliant ballot notice. The court's decision was a clear reminder of the importance of ensuring that protected action ballots comply with the procedural requirements of the Act, and the need for unions and employers to work together to facilitate lawful and effective industrial action.

The Australian Workers' Union v Skilled Group Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established