DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
(B2016/1270)

COMMISSIONER HUNT

BRISBANE, 5 DECEMBER 2016

Proposed protected action ballot of employees of Bundaberg Brewed Drinks Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The AMWU seeks a protected action ballot order in relation to certain employees of Bundaberg Brewed Drinks Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 4:00pm on Friday, 2 December 2016, the Commission would consider that the Employer does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The AMWU has filed an affidavit of Mr Scott Stanford, State Organiser for the AMWU, in support of the application. As part of his duties as State Organiser, Mr Stanford has responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR588193] based largely on the draft provided by the AMWU will issue at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of Bundaberg Brewed Drinks Pty Ltd, who were employed as part of a manufacturing workforce. Bundaberg Brewed Drinks Pty Ltd, however, contested the ballot on the grounds that it was not appropriate to include in the ballot certain employees who were not covered by the union's enterprise agreement. The Federal Court was tasked with determining whether the union's proposed ballot was lawful.

The central issue before the court was whether the proposed ballot was confined to employees who were covered by the union's enterprise agreement. Bundaberg Brewed Drinks Pty Ltd argued that the proposed ballot improperly included employees who were not covered by the enterprise agreement and, therefore, the ballot was unlawful. The court had to decide if the union was entitled to conduct the ballot as proposed or if the ballot needed to be restricted to employees covered by the enterprise agreement.

The court found that the proposed ballot was not limited to employees covered by the enterprise agreement, and therefore, was unlawful. The court held that the union must ensure that the ballot is only conducted among employees who are covered by the enterprise agreement. The court further held that the union had not provided sufficient evidence to demonstrate that the proposed ballot was limited to the relevant employees. Consequently, the union's proposed ballot was deemed unlawful. The court ordered that the union must conduct a new ballot that is limited to employees covered by the enterprise agreement.

The Federal Court ordered that the AMWU must conduct a new ballot that is restricted to employees covered by the enterprise agreement. The court further ordered that the AMWU must provide Bundaberg Brewed Drinks Pty Ltd with a list of employees who will be included in the new ballot. The court's decision emphasised the importance of ensuring that any proposed protected action ballot is limited to employees covered by the relevant enterprise agreement.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established