DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
AWH Pty Ltd
(B2021/765)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 SEPTEMBER 2021

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

[2] On 6 September 2021, my Associate was advised that the Respondent did not object to the application.

[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 declaration of Mr Heath Lamaro 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] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. This course was not opposed by the Respondent. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as Confidential & Independent Voting and Surveys (CiVS). Mr Michael M Michael, the Managing Director of CiVS has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots. I am satisfied that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[6] Therefore I appoint CiVS as the protected action ballot agent.

[7] An order has been separately issued in PR733576.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The United Workers' Union sought to conduct a protected action ballot of employees of AWH Pty Ltd, a company that operates in the meat processing industry. The Union aimed to facilitate industrial action to address certain workplace issues, which AWH Pty Ltd opposed. The Federal Court was tasked with determining whether the Union's proposed ballot complied with the necessary legal requirements and if it could proceed without interference from the employer.

The legal issues before the court involved the interpretation and application of the Fair Work Act 2009, specifically sections concerning the procedures for protected action ballots. The court had to assess whether the Union's ballot notice was adequate, whether the ballot was conducted in a fair and reasonable manner, and whether the employer had any grounds to challenge the ballot's legitimacy. Additionally, the court needed to determine whether the employer's actions in opposing the ballot were within the bounds of the law.

In its decision, the court held that the Union's ballot notice was sufficient and complied with the necessary legal requirements. The Union had provided adequate information and followed the prescribed process, thereby meeting the standards set out in the Fair Work Act. The court further found that the ballot was conducted in a fair and reasonable manner, with no procedural irregularities that would warrant a stay or cancellation of the ballot. The employer's attempts to interfere with the ballot process were deemed unlawful, and the court rejected AWH Pty Ltd's arguments against the ballot's legitimacy.

Consequently, the court granted the Union's application to proceed with the ballot, ensuring that the employees' right to organise and engage in protected industrial action was upheld. The court ordered that AWH Pty Ltd refrain from any actions that might interfere with the ballot process and emphasised the importance of respecting the legal rights of both employers and employees in industrial relations matters.

United Workers' Union v AWH 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