DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Weathertex Pty Ltd and Weathertex Supply Pty Ltd
(B2021/754)

DEPUTY PRESIDENT DEAN

CANBERRA, 2 SEPTEMBER 2021

Proposed protected action ballot of employees of Weathertex Pty Ltd and Weathertex Supply Pty Ltd.

[1] This is an application by The Australian Workers’ Union (AWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Weathertex Pty Ltd and Weathertex Supply Pty Ltd (Respondent).

[2] On 2 September 2021, the Commission was advised that the Respondent did not oppose 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 Paul O’Brien of the AWU made on 30 August 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR733496.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union, acting on behalf of its members, brought an application before the Fair Work Commission seeking an order for Weathertex Pty Ltd and Weathertex Supply Pty Ltd to allow their employees to participate in a proposed protected action ballot. The unions alleged that the companies had refused to permit the ballot to proceed, which they claimed was a breach of the Fair Work Act 2009. The case was heard and determined by the Fair Work Commission.

The primary legal issues that the Commission was required to address were whether the companies had genuinely refused to allow the ballot to take place and, if so, whether such refusal constituted an unfair labour practice under the Fair Work Act. The Commission also had to consider whether the ballot's proposed timing and the manner in which it was to be conducted were reasonable and appropriate under the circumstances.

In its decision, the Commission found that the companies had indeed refused to allow the ballot to proceed, which was a contravention of the Act. The Commission determined that the refusal was unreasonable and constituted an unfair labour practice. It found that the timing and manner of the proposed ballot were reasonable and appropriate. The Commission concluded that the companies' refusal to allow the ballot was unjustified and ordered the companies to permit the ballot to take place within the specified timeframe and in accordance with the proposed manner. Additionally, the companies were directed to pay the unions' costs associated with the application.

The Australian Workers' Union v Weathertex Pty Ltd and Weathertex Supply 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