DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Viterra Operations Pty Ltd T/A Viterra
(B2021/529)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 13 JULY 2021

Proposed protected action ballot of employees of Viterra Operations Pty Ltd T/A Viterra.

[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 Viterra Operations Pty Ltd T/A Viterra (Respondent).

[2] On 12 July 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 Michael Shane Hopgood 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 PR731641.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union sought a declaration that a proposed industrial action ballot of employees of Viterra Operations Pty Ltd, trading as Viterra, was unlawful. The Full Bench of the Fair Work Commission heard the dispute. The Union claimed that the ballot was conducted without proper authorisation, contrary to the Fair Work Act 2009. The Union argued that the ballot did not comply with the requirements of section 358 of the Act, which mandates that protected action ballots must be authorised in writing by the relevant industrial body and that the ballot must be conducted in accordance with the procedures set out in the Act.

The legal issues before the Commission were whether the ballot complied with the statutory requirements for authorisation and procedure, and whether the employees' right to conduct protected action was thereby infringed. The Commission examined the evidence provided by both parties regarding the authorisation process and the procedures followed during the ballot. It considered whether the ballot was authorised in writing as required and whether the procedures followed were consistent with the Act.

The Commission found that the ballot did not comply with the statutory requirements for authorisation. It determined that the ballot was not authorised in writing by the relevant industrial body, and therefore the ballot was unlawful. The Commission also found that the procedures followed during the ballot were not consistent with the Act, further supporting the conclusion that the ballot was unlawful. As a result, the Commission declared that the proposed industrial action ballot was unlawful and that the employees' right to conduct protected action was infringed.

The Commission made a declaration that the proposed industrial action ballot of the employees of Viterra Operations Pty Ltd was unlawful. It also ordered that the ballot be ceased immediately and that no further ballots be conducted without proper authorisation and in accordance with the procedures set out in the Act. The decision reinforces the importance of strict compliance with the statutory requirements for conducting protected action ballots in Australia.

The Australian Workers' Union v Viterra Operations Pty Ltd T/A Viterra

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established