United Workers' Union v Brickwood Victoria Pty Ltd T/A Brickwood

[2021] FWC 6402

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
Brickwood Victoria Pty Ltd T/A Brickwood
(B2021/1122)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 22 NOVEMBER 2021

Proposed protected action ballot of employees of Brickwood Victoria Pty Ltd T/A Brickwood.

[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 Brickwood Victoria Pty Ltd T/A Brickwood (Respondent).

[2] On 19 November 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 Steve Howie 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 PR735995.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission involved the United Workers' Union and Brickwood Victoria Pty Ltd, trading as Brickwood. The union sought to conduct a ballot among Brickwood's employees for protected industrial action, which the employer opposed. The Commission was tasked with determining the validity of the union's proposed ballot and the associated protected action.

The central legal issue was whether the union's proposed industrial action was protected action under the Fair Work Act 2009. The employer argued that the proposed action was not genuinely in pursuit of a genuine industrial dispute, thus questioning the union's right to conduct the ballot. The union contended that the action was in response to the employer's failure to negotiate in good faith over proposed changes to employment conditions.

The Commission found that the union's proposed industrial action was indeed in pursuit of a genuine industrial dispute. The union had made a genuine attempt to resolve the dispute through negotiation, fulfilling the requirements under the Fair Work Act. The employer's conduct was considered to have hindered genuine negotiations, which justified the union's proposed action. The Commission ruled in favour of the union, allowing the ballot to proceed. The employer's application to prevent the ballot was dismissed.

The final orders included the approval of the union's ballot notice and a declaration that the union's proposed industrial action was protected action under the Fair Work Act. The employer was directed to provide necessary assistance to facilitate the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established