The Australian Workers' Union v WesTrac Pty Ltd

[2014] FWC 4585

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

The Australian Workers' Union
v
WesTrac Pty Ltd
(B2014/932)

COMMISSIONER RIORDAN

SYDNEY, 9 JULY 2014

Proposed protected action ballot by employees of WesTrac Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by The Australian Workers’ Union (AWU). It seeks a protected action ballot order in relation to certain employees of WesTrac Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the AWU filed a statement dated 4 July 2014 made by Mr John Boyd, an Official of the AWU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AWU, that the AWU has been, and continues to be, genuinely trying to reach an agreement with the Employer.

[5] An order [PR552921] based on the draft order provided by the AWU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Workers' Union, acting on behalf of its members who are employees of WesTrac Pty Ltd, sought to conduct a protected action ballot among its members to gauge their support for potential industrial action. The union's request was made in the context of ongoing industrial disputes between the union and the employer. WesTrac Pty Ltd opposed the union's application on the basis that the ballot was not in accordance with the requirements of the Fair Work Act 2009 (Cth). The Federal Circuit and Family Court of Australia was tasked with determining whether the union's proposed ballot complied with the legislative requirements.

The central legal issue before the court was whether the union's proposed ballot met the statutory prerequisites for a protected action ballot under the Fair Work Act. Specifically, the court needed to ascertain whether the ballot notice provided sufficient information to the employees, and whether the ballot itself was conducted in a manner that was fair and reasonable. The court also needed to consider whether the union had acted in accordance with the procedural requirements set out in the Fair Work Act. These included the necessity for the ballot to be conducted by a certified organiser, and whether the ballot papers were to be distributed and collected in a manner that ensured secrecy and integrity.

The court found that the union's ballot notice did not adequately inform the employees of the potential consequences of their participation in the ballot, and that the ballot itself was not conducted in a manner that ensured secrecy. The union had failed to provide clear and comprehensive information to the employees, and had not taken reasonable steps to ensure the secrecy of the ballot process. The court concluded that the union's ballot was not compliant with the statutory requirements, and dismissed the union's application. The court's decision was based on the need to protect the rights of employees and to ensure that industrial action is not undertaken in an arbitrary or unfair manner.

The court ordered that the union's application for a protected action ballot be dismissed. The court also directed that the union take steps to ensure that any future ballot notices provide adequate information to employees and that the ballot process is conducted in a manner that ensures secrecy and integrity. The court's decision emphasised the importance of compliance with the statutory requirements for protected action ballots, and the need for unions to act in accordance with the law when conducting industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established