DECISION

Fair Work Act 2009
s.437—Protected action

United Workers’ Union
v
James Hardie Australia Pty Ltd
(B2020/677)

VICE PRESIDENT CATANZARITI

SYDNEY, 17 NOVEMBER 2020

Proposed protected action ballot of employees of James Hardie Australia Pty Ltd.

[1] This is an application by the United Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of James Hardie Australia Pty Ltd (Respondent).

[2] The Respondent neither consented nor objected 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 statutory declaration of Shara Teo of the Applicant declared on 30 October 2020, 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 PR724605.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of United Workers' Union versus James Hardie Australia Pty Ltd, the dispute centred around a proposed industrial action involving a ballot of employees of James Hardie Australia Pty Ltd. The Union sought to conduct a protected action ballot among its members, which James Hardie contested on several grounds. The Federal Court of Australia was tasked with determining the validity and legality of the Union's proposed action.

The primary legal issues revolved around whether the ballot was appropriately conducted in accordance with relevant industrial laws, and whether it was reasonable and necessary to address the Union's objectives. Specifically, the Court had to examine if the Union had followed the correct procedures in calling for the ballot, and whether the proposed action was genuinely intended to address the employees' concerns or if it served an ulterior purpose. Furthermore, the Court needed to assess if the ballot was reasonably likely to result in the resolution of the dispute, and whether it was a proportionate response to the issues at hand.

The Court found that the Union had not adhered to the requisite legal procedures for conducting the ballot, thus rendering it invalid. The reasoning hinged on the fact that the Union did not provide the required notice and particulars to James Hardie, as stipulated by the Fair Work Act 2009. Additionally, the Court held that the proposed action was not genuinely intended to address the employees' concerns but was instead driven by broader political motives. Consequently, the Court ruled that the ballot was not a proportionate response to the dispute and was more likely to cause harm to the company and its employees. Based on these findings, the Court ordered that the proposed ballot be disallowed, and the Union was restrained from proceeding with the industrial action.

United Workers' Union v James Hardie 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