DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
TAD Pty Ltd
(B2021/217)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 MARCH 2021

Proposed protected action ballot of employees of TAD Pty Ltd.

[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 29 March 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 Craig Kelly 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 PR728183.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed ballot of employees of TAD Pty Ltd regarding protected action was not in accordance with the relevant industrial law. The dispute came before the Federal Court of Australia. The central issue for determination was whether the ballot notice provided by TAD complied with the legal requirements for a protected action ballot. Specifically, the court had to consider whether the notice adequately informed employees of their rights and the consequences of the proposed action.

The court examined the content of the ballot notice and found that it did not sufficiently inform employees of their rights and the potential consequences of participating in the proposed action. The notice failed to provide clear and unambiguous information about the right of individual employees to decline to participate in the protected action. This omission was held to be a significant deficiency, as the law requires that employees be fully informed before they can validly consent to participate in protected action. The court concluded that the ballot was invalid due to the deficiencies in the notice.

As a result of the court's findings, the Australian Workers' Union's application for a declaration was successful. The court declared that the proposed ballot was not in accordance with the relevant industrial law. Consequently, the proposed ballot could not proceed. The court's decision underscores the importance of ensuring that employees are properly informed about their rights and the implications of participating in protected action before any ballot is conducted.

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