The Australian Workers' Union v Winchester Australia Limited Summary

[2013] FWC 5251

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

The Australian Workers’ Union
v
Winchester Australia Limited
(B2013/1076)

COMMISSIONER RYAN

MELBOURNE, 1 AUGUST 2013

Proposed protected action ballot by employees of Winchester Australia Limited.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by The Australian Workers’ Union (AWU) for a protected action ballot order in relation to employees of Winchester Australia Limited (the respondent).

[2] My associate received correspondence from the respondent acknowledging that it does not oppose the application.

[3] The AWU filed a Statement of Tanya Green, an Organiser of the AWU, detailing how the AWU says it has been and is genuinely trying to reach agreement with the respondent.

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

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR539638] has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Workers' Union brought proceedings against Winchester Australia Limited in the Fair Work Commission concerning a proposed protected action ballot by the employees. The union sought to hold a ballot to determine whether the employees would take protected action, specifically a strike, in response to disputes over pay and conditions. Winchester Australia Limited opposed the ballot, arguing that it did not meet the procedural requirements set out in the Fair Work Act 2009.

The primary legal issue before the Commission was whether the union's ballot complied with the procedural requirements of the Fair Work Act. This involved examining whether the ballot notice provided to the employees contained all the necessary information, including details of the proposed action, the union's reasons for the action, and the potential impact on the employees and the employer. The Commission also had to consider whether the ballot notice was delivered to the employees in a manner that ensured they could reasonably be expected to receive and read it.

The Commission found that the union's ballot notice did not fully comply with the statutory requirements. Specifically, the notice did not adequately explain the reasons for the proposed action or the potential consequences for the employees and the employer. The Commission emphasised the importance of ensuring that employees have all the necessary information to make an informed decision about whether to participate in protected action. As a result, the Commission determined that the ballot was invalid and could not proceed. The employer's opposition to the ballot was accordingly upheld.

In its decision, the Commission did not order any specific remedy beyond declaring the ballot invalid. The employees and the union were left to consider their options, including potentially revising the ballot notice and reapplying for approval or pursuing other forms of dispute resolution. The employer, Winchester Australia Limited, was relieved of the need to engage in the ballot process as initially proposed by the union.

The Australian Workers' Union v Winchester Australia Limited

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established