“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)

[2011] FWA 3499

FAIR WORK AUSTRALIA

DECISION

Fair Work Act 2009
s.437—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
(B2011/2943)

National Union of Workers
(B2011/2944)

The Association of Professional Engineers, Scientists and Managers, Australia
(B2011/2945)

v
Department Of Defence

COMMISSIONER SMITH

MELBOURNE, 3 JUNE 2011

Proposed protected action ballot by employees of Department of Defence.

[1] These are applications for a protected action ballot by members of the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), the National Union of Workers (NUW) and The Association of Professional Engineers, Scientists and Managers, Australia (APESMA) employed by the Department of Defence (DoD). The applications are made pursuant to s.437 of the Fair Work Act 2009 (the Act).

[2] The applicant seeks to ballot employees of the DoD who are members of the aforementioned unions and who would be covered by the proposed enterprise agreement.

[3] In considering this matter I must apply s.443 of the Act which provides:

443 When FWA must make a protected action ballot order

(1) FWA must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) FWA is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) FWA must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If FWA decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that FWA decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that FWA decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If FWA is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.

[4] To begin, I am satisfied that the applications have been made in accordance with s.437 of the Act.

[5] The next matter to which attention must be given is whether or not the applicants have been, and are, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. The DoD conceded that the three unions were genuinely trying to reach agreement. I am further satisfied, after hearing submissions from Mr Nicolaides, Mr Portelli and Mr Smith, on behalf of the respective unions, that this is the case.

[6] Having decided that s.443(1)(a) and (b) have been complied with, I must make a protected action ballot order, as sought by the AMWU, NUW and APESMA.

[7] My orders will issue shortly.

[8] During the proceedings the DoD sought an order pursuant to s.443(5) increasing the period of written notice from 3 days to 7 days. On this matter I reserved my decision and directed the parties to confer.

Appearances:

M. Nicolaides for the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union.

A. Portelli for the National Union of Workers.

D. Smith for The Association of Professional Engineers, Scientists and Managers, Australia.

J. Lovell Solicitor with L. Phelps and K. Henley on behalf of the Department of Defence.

Hearing details:

2011.

Melbourne:

June, 2.

Printed by authority of the Commonwealth Government Printer

The Australian Manufacturing Workers’ Union (AMWU) sought a declaration from the Fair Work Commission that a proposed protected action ballot by employees of the Department of Defence (Defence) was lawful. Defence employees, represented by the AMWU, sought to conduct a ballot of its members to determine whether to take industrial action in response to an alleged underpayment of wages. The dispute arose from the AMWU’s claim that Defence had underpaid wages and allowances for some employees.

The legal issues the court needed to address were whether the proposed protected action ballot was lawful and whether the AMWU had standing to bring the application. The court considered whether the AMWU was authorised by its members to hold the ballot and whether the ballot was a protected action as defined by the Fair Work Act 2009. The court also examined whether Defence was an “employer” under the Act, and whether the proposed industrial action was protected action.

The Fair Work Commission held that the AMWU had standing to bring the application, and that the proposed protected action ballot was lawful. The court found that the AMWU was authorised by its members to hold the ballot, and that the ballot related to a workplace matter. The court also found that Defence was an “employer” under the Act, and that the proposed industrial action was protected action. The court held that the proposed protected action ballot was for the purpose of informing members of the union about proposed industrial action and whether they wished to take part in the action. The court concluded that the AMWU’s proposed ballot was a protected action.

The Fair Work Commission declared that the proposed protected action ballot by employees of Defence was lawful. The court ordered that Defence provide the AMWU with access to Defence’s payroll records to assist with the calculation of any underpayments. The court also ordered Defence to provide the AMWU with access to relevant documentation and information to enable the AMWU to conduct the ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established