The Australian Workers' Union v John Holland Pty Ltd - re Proposed protected action ballot by employees of John Holland Pty Ltd - whether question is ambiguous - need for question to be unambiguous - Fair Work Act 2009, ss.436, 437, 443 [2009] FWA 576

Result

defendant. The application for a protected action ballot order was granted. The Commissioner issued the order at PR989793 (para [25]).

Key principles

• The requirement for questions in a protected action ballot to be unambiguous is satisfied where the questions are expressed in terms of ordinary industrial English and enable...
• A preamble to ballot questions that authorises industrial action 'separately, concurrently and/or consecutively' is not inherently ambiguous where the questions plainly invite...
• The test for whether a bargaining representative is 'genuinely trying to reach an agreement' under s.443(1)(b) of the Fair Work Act 2009 is to be determined by examining the...
• The burden of proving pattern bargaining under s.412(4) lies with the employer, and where the definition of pattern bargaining in s.412(1) is not met (specifically, that the...

Issues before the court

• Whether the proposed protected action ballot questions were ambiguous
• Whether the Australian Workers' Union was genuinely trying to reach agreement