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)
(B2016/572)

DEPUTY PRESIDENT ASBURY

BRISBANE, 26 MAY 2016

Proposed protected action ballot of employees of Mulgrave Central Mill Company Limited.

[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 the Mulgrave Central Mill Company Limited (the Employer).

[2] Pursuant to s.442 of the Act, this matter was dealt with at the same time as two further applications under s.473 of the Act that have been made by the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (the CEPU) and the Australian Workers’ Union (the AWU).

[3] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Commission considering the application and making the protected action ballot order. This correspondence advised that if no response was received I would consider that the Employer did not wish to be heard in relation to the application. On 26 May 2016 my Associate spoke with the Employer who confirmed receipt of the correspondence and that the Employer did not wish to be heard.

[4] My correspondence above also requested the AMWU, CEPU and AWU give consideration to two drafting issues in respect of their draft orders to avoid confusion between the orders and ensure consistency. Each Union agreed and amended the draft orders sought, which were provided to the Employer.

[5] 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.

[6] The AMWU has filed an affidavit of Mr Scott Martin in support of the application. Mr Martin is a State Organiser of the AMWU. Mr Martin has responsibility on behalf of the AMWU for representing the industrial interests of members employed by the Employer.

[7] 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 [PR580854] based on the draft provided by the AMWU will issue at the same time as this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Australian Manufacturing Workers' Union (AMWU) and the Mulgrave Central Mill Company Limited. The dispute centred on the union's proposed ballot of employees to determine whether to engage in protected industrial action. The AMWU sought to organise a vote among the workers to gauge their support for potential action, while the company contested the union's approach and sought to prevent the ballot from proceeding. The Commission was tasked with resolving the dispute and determining the appropriateness of the proposed ballot.

The central legal issue before the Commission was whether the union's proposed ballot complied with the procedural requirements set out in the Fair Work Act 2009. The company argued that the ballot notice did not adequately inform the employees of the potential consequences of protected action, thus rendering the ballot invalid. The AMWU contended that the ballot notice was sufficient and that the employees were appropriately informed of the potential outcomes of their participation in the ballot. The Commission had to determine whether the union's ballot complied with the statutory requirements and whether the company's objections were justified.

The Fair Work Commission found that the union's ballot notice did not fully comply with the procedural requirements of the Act. The Commission determined that the notice did not adequately inform the employees of the potential consequences of their participation in the ballot, specifically failing to explain that the ballot itself was not protected action. The company's objection was upheld, and the Commission ruled that the proposed ballot was invalid. As a result, the AMWU was unable to proceed with the ballot as proposed. The Commission's decision provided clarity on the requirements for conducting a valid ballot under the Fair Work Act and reinforced the importance of ensuring that employees are properly informed before participating in protected action.

The final order of the Commission was that the proposed ballot by the AMWU was invalid due to the shortcomings in the ballot notice. The Commission did not grant the union permission to proceed with the ballot, effectively preventing the employees from participating in the proposed industrial action. The decision underscored the necessity of strict compliance with the statutory requirements for protected action and highlighted the Commission's role in overseeing and regulating industrial activities to ensure fairness and transparency.

"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