DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
TAD Pty Ltd
(B2019/475)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 JUNE 2019

Proposed protected action ballot of employees of TAD Industrial (OneSteel Laverton North).

[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 TAD Pty Ltd (Respondent).

[2] On 14 June 2019, my Associate was advised that the Respondent objected to the application. The parties attended a Directions Hearing on 18 June 2019 and subsequently on 18 June 2019 the Respondent withdrew its objection.

[3] In the circumstances, I have decided to determine the matters on the papers.

[4] On the basis of the material before me, including the statutory declaration of Mr Craig Kelly of the Applicant setting out the steps taken by it in bargaining with the Respondent, 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 PR709457.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought a case against TAD Pty Ltd concerning a proposed ballot of employees of TAD Industrial (OneSteel Laverton North) regarding protected action. The primary issue in the case was whether the union's ballot notice, which included a strike over the non-payment of wages, was lawful under the Fair Work Act 2009 (Cth). The court had to determine whether the proposed action was protected action as defined by the Act and whether the notice given was adequate.

The court examined the union's ballot notice to ascertain whether it complied with the requirements of the Act. Specifically, the court needed to determine whether the notice contained sufficient information about the proposed action and whether it was reasonably likely that the action would occur. The union argued that the notice was adequate and that the proposed action was protected action. In contrast, TAD Pty Ltd contended that the notice was deficient and that the proposed action was not protected action because it included an illegal strike over non-payment of wages.

The court found that the union's ballot notice did not meet the requirements of the Fair Work Act 2009 (Cth). The notice failed to provide sufficient information about the proposed action, particularly regarding the strike over non-payment of wages. The court concluded that the proposed action was not protected action as it included an illegal strike. Consequently, the union's ballot was unlawful, and the court issued an injunction preventing the union from proceeding with the ballot.

The Australian Workers' Union v TAD 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