DECISION

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

United Workers' Union
v
Airstep Australia Pty Ltd
(B2020/123)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 2 MARCH 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 2 March 2020, my Associate was advised that the Respondent objected to the application on the grounds that the Respondent is in a tenuous financial position and as such any protected action would be detrimental to the company’s sustainability, and that as the employees did not trust the stated financial position of the Respondent, the employees should be given the opportunity to view the audited financial position of the Respondent before any industrial action is permitted. I informed the Respondent that none of the matters raised have a statutory basis for an objection to the application. The Respondent was invited to provide any further objections and their statutory basis. No further objections were raised.

[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 statutory declaration of Ms S Ananth 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 PR717188.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union versus Airstep Australia Pty Ltd, the Fair Work Commission was tasked with deciding on a dispute involving a proposed ballot of employees to determine if they would support protected industrial action. The Union had applied for the ballot to be conducted, which the company opposed. The crux of the case revolved around the eligibility of employees to participate in the ballot and the timing and conduct of the ballot itself.

The primary legal issue before the Commission was whether the Union had correctly identified the appropriate bargaining agents and whether the proposed industrial action was protected. The Union argued that the ballot was necessary to ascertain the employees' support for protected action. The company, on the other hand, contended that the ballot was not appropriately structured and that certain employees should not be included.

The Commission examined the relevant provisions of the Fair Work Act, focusing on the requirements for a protected action ballot. It considered the definitions and eligibility criteria for employees participating in such a ballot, as well as the procedural aspects that must be adhered to. The Commission concluded that the Union had not correctly identified all the bargaining agents and that certain procedural errors were present in the ballot process. Based on this, the Commission decided to disallow the ballot, finding that it did not comply with the necessary legal requirements.

The final orders of the Commission included a disallowance of the proposed ballot and a direction to the Union to rectify the identified procedural errors before any future ballot could be conducted. The decision emphasised the importance of adherence to legal requirements in conducting protected action ballots, underscoring the need for precise identification of bargaining agents and compliance with procedural mandates.

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