The Australian Workers' Union v WesTrac Pty Ltd

[2022] FWC 546

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

The Australian Workers’ Union
v

WesTrac Pty Ltd

(B2022/188)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 MARCH 2022

Proposed protected action ballot of employees of WesTrac 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 WesTrac Pty Ltd (Respondent).

On 10 March 2022, 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 John Boyd of the Applicant declared on 9 March 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 PR739238.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union (AWU) applied to the Fair Work Commission for an order permitting a protected action ballot for its members employed by WesTrac Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, and the matter was heard by Vice President Catanzariti in Sydney on 11 March 2022. WesTrac Pty Ltd did not oppose the application, leading to the decision being made based on the documents submitted without a hearing.

The legal issues the court had to address included whether the AWU had genuinely attempted to negotiate with WesTrac Pty Ltd in good faith and whether the conditions for a protected action ballot were met. The AWU had to demonstrate that it had been genuinely attempting to reach an agreement with WesTrac Pty Ltd and that the requisite notification period had elapsed as per section 443(1) of the Act.

The Vice President concluded that the AWU had satisfied the conditions for a protected action ballot, as evidenced by the statutory declaration of John Boyd from the AWU, who confirmed the union's good faith efforts in negotiations and the completion of the notification period. As a result, the application for a ballot order was granted. The decision also referenced a separately issued order in PR739238.

The Fair Work Commission issued an order permitting the AWU to conduct a protected action ballot for its members employed by WesTrac Pty Ltd. This order was made in accordance with the provisions of the Fair Work Act 2009, reflecting the determination that the union had met the necessary conditions for such a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established