DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Airstep Australia Pty Ltd
(B2020/373)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 22 JULY 2020

Proposed protected action ballot of employees of Airstep Australia Pty Ltd.

[1] This is an application by the United 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 Airstep Australia Pty Ltd (Respondent).

[2] On 21 July 2020 the Respondent notified that it opposed the orders sought by the Applicant.

[3] I conducted a telephone mention between the parties on 22 July 2020. During the mention the Respondent accepted that the Applicant has been and is genuinely trying to reach an agreement with it. Its opposition was principally founded on the potential economic impact of any industrial action. I indicated to the parties that I would issue the ballot orders sought.

[4] On the basis of the material before me, including the declaration of Mr D Robson 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 PR721203.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to conduct a ballot of employees of Airstep Australia Pty Ltd for proposed protected industrial action. The employer opposed the ballot, contending it was not necessary and that the union had not made a genuine attempt to resolve the dispute through conciliation or mediation. The matter was heard in the Fair Work Commission.

The legal issues before the Commission included whether the union had provided sufficient evidence of a genuine dispute, whether there had been an adequate attempt at conciliation, and whether the proposed ballot was necessary to resolve the dispute. The employer argued that the union had not demonstrated the need for the ballot and that alternative dispute resolution processes had not been properly exhausted.

The Commission examined the evidence provided by both parties and found that the union had indeed demonstrated the existence of a genuine dispute. The Commission also determined that the union had made a genuine attempt at conciliation, despite the employer's assertions to the contrary. Furthermore, the Commission concluded that a ballot was necessary to enable the employees to make an informed decision on the proposed action. Accordingly, the Commission ruled in favour of the union, allowing the proposed ballot to proceed.

The Fair Work Commission ordered that the United Workers' Union be permitted to conduct a ballot of the employees of Airstep Australia Pty Ltd for the proposed protected industrial action, in accordance with the relevant provisions of the Fair Work Act. The employer was directed to facilitate the conduct of the ballot and to provide necessary information and access to employees to ensure a fair process. The decision underscored the importance of the right to organise and engage in protected industrial action, as well as the need for genuine dispute resolution efforts.

United Workers' Union v Airstep Australia 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