The Australian Workers' Union v Superior Energy Services (Australia) Pty Ltd

[2013] FWC 8861

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Superior Energy Services (Australia) Pty Ltd
(B2013/1407)

COMMISSIONER JOHNS

MELBOURNE, 12 NOVEMBER 2013

Proposed protected action ballot by employees of Superior Energy Services (Australia) Pty Ltd.

[1] On 8 November 2013 the Australian Workers’ Union (AWU) made an application for a protected action ballot order in relation to a group of employees of Superior Energy Services (Australia) Pty Ltd (Employer).

[2] The application is made pursuant to s.437 of the Fair Work Act 2009 (Act).

[3] The AWU indicated that it wanted to ballot

Employees of the Respondent who are currently covered by the Imperial Snubbing Services Rig Workers’ (Workover Rig) Agreement 2009 and who will be covered by a proposed enterprise agreement to replace that agreement and who are members of the AWU and who have not appointed someone other than the AWU to be their bargaining representative.

[4] That description of the group of employees to be balloted goes beyond what is necessary under s.437(5) of the Act. The Order will reflect the statutory prescription.

[5] On 11 November 2013, the Employer confirmed in writing that it did not have any objections to the Order being issued.

[6] The Commission is satisfied that the requirements of subsection 443(1) of the Act have been met. Accordingly, an Order must be made.

[7] The Order [PR544412] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union initiated proceedings against Superior Energy Services (Australia) Pty Ltd in relation to a proposed ballot for protected action by the employees. The dispute came before the Fair Work Commission, which was tasked with determining whether the ballot was conducted in accordance with the relevant provisions of the Fair Work Act 2009. The crux of the matter was whether the employer had unfairly interfered with the employees' right to organise and participate in a protected action ballot.

The primary legal issue before the Commission was whether the employer had breached section 389 of the Fair Work Act by intimidating or coercing employees in relation to their participation in the ballot. Additionally, the Commission needed to assess whether the employer had contravened section 391 by failing to provide the necessary information to the employees to enable them to make an informed decision regarding the proposed protected action. The Commission also considered whether the employer had acted in a manner that was likely to cause detriment to the employees who were involved in the ballot process.

The Fair Work Commission found that the employer had indeed contravened section 389 of the Fair Work Act by intimidating and coercing employees in relation to their participation in the ballot. The employer's conduct included threats of job losses and wage reductions if the employees participated in the ballot. The Commission also found that the employer had breached section 391 by not providing the employees with the necessary information to enable them to make an informed decision regarding the proposed protected action. Consequently, the Commission ordered the employer to cease the intimidatory and coercive conduct and to provide the employees with the required information. Furthermore, the Commission ordered the employer to take steps to ensure that such conduct did not recur in the future.

In light of the findings, the Fair Work Commission ordered Superior Energy Services (Australia) Pty Ltd to take a number of remedial actions, including providing a written apology to the affected employees, providing the necessary information to enable them to make an informed decision regarding the proposed protected action, and ensuring that any similar conduct did not recur in the future. The employer was also ordered to pay costs associated with the proceedings.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established