The Australian Workers' Union v UGL Resources (Contracting) Pty Ltd

[2022] FWC 2943

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

UGL Resources (Contracting) Pty Ltd

(B2022/1659)

VICE PRESIDENT CATANZARITI

SYDNEY, 4 NOVEMBER 2022

Proposed protected action ballot of employees of UGL Resources (Contracting) Pty Ltd

This is an application by the Australian Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of UGL Resources (Contracting) Pty Ltd (Respondent).

On 4 November 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Ross Kumeroa of the Applicant declared on 3 November 2022, 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.

An Order has been separately issued in PR747656.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission dealt with an application by the Australian Workers' Union seeking a protected action ballot order in relation to employees of UGL Resources (Contracting) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The Union sought to conduct a ballot for potential protected action due to ongoing bargaining difficulties with the Respondent. UGL Resources did not oppose the application, leading the Commission to decide the matter on the papers without the need for a hearing. The decision was based on the statutory declaration by Ross Kumeroa of the Union, which outlined the steps taken in bargaining and the Union's genuine attempts to reach an agreement.

The key legal issue before the Commission was whether the requirements of section 437 of the Fair Work Act had been met to allow the Union to proceed with a ballot for protected action. The Union needed to demonstrate that it had been genuinely attempting to reach an agreement with the employer and that the statutory notification period for the proposed agreement had been met. The Union's declaration and the absence of opposition from the employer played crucial roles in the Commission's decision-making process.

The Vice President of the Fair Work Commission found that the Union had indeed met the requirements for a protected action ballot under the Act. The statutory declaration provided sufficient evidence that the Union had engaged in good faith bargaining and that the notification period had been correctly observed. Consequently, the Commission determined that the Union could proceed with the ballot. The decision was straightforward given the lack of opposition from the employer and the Union's compliance with the necessary legal requirements.

The Fair Work Commission issued an order permitting the Australian Workers' Union to conduct a protected action ballot among the employees of UGL Resources (Contracting) Pty Ltd. This decision underscores the importance of genuine bargaining efforts and compliance with notification periods in the context of industrial action under 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