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

[2013] FWC 7422

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Superior Energy Services (Australia) Pty Ltd
(B2013/1262)

COMMISSIONER JOHNS

MELBOURNE, 25 SEPTEMBER 2013

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

[1] On 24 September 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 24 September 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 [PR542443] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, on behalf of its members who are employees of Superior Energy Services (Australia) Pty Ltd, applied to the Federal Court for an order allowing a proposed protected action ballot. The ballot aimed to gather employee support for potential industrial action, including strikes, in response to disputes over the terms and conditions of employment. The application was opposed by Superior Energy Services (Australia) Pty Ltd. This case came before the Federal Court of Australia, where the central issue was whether the union's proposed ballot complied with the necessary legal requirements to be protected from legal action under the Fair Work Act 2009.

The court examined whether the ballot notice provided to employees was in the correct form and contained all the mandatory information required under section 367 of the Fair Work Act. This included whether it specified the protected action, the employer involved, and the duration of the ballot period. The court also considered whether the union had complied with procedural requirements, such as providing the employer with the ballot notice and allowing the employer a reasonable opportunity to object. Furthermore, the court assessed the reasonableness of the employer's objections and whether they were sufficient to warrant the court denying the union's application.

The court found that the union's ballot notice was not in the correct form and did not include all the mandatory information required by the Act. The notice failed to specify the proposed action with sufficient detail, which was a critical aspect of the ballot's validity. Additionally, the court noted procedural shortcomings in the union's handling of the ballot process, which did not afford the employer a reasonable opportunity to object. As a result, the court ruled that the union's application for an order allowing the proposed ballot should be dismissed. Consequently, the employees were not permitted to proceed with the ballot as it did not meet the legal standards set by the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established