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)
(B2015/732)

COMMISSIONER LEE

MELBOURNE, 21 JULY 2015

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd.

[1] This matter involves an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (the Respondent).

[2] Section 443(1) of the Fair Work Act 2009 (the Act) states:

“(1) The FWC 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) the FWC 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) The FWC 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;

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

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.
(4) If the FWC 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 the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

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

(5) If the FWC 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.”

[3] On 17 July 2015, my Chambers was advised by the Respondent that it had no objections to the application and did not seek to be heard.

[4] The Applicant has lodged a witness statement from Mr Shane Littler, Union Official, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union, addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR569586] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union, acting on behalf of its members employed by McCain Foods (Aust) Pty Ltd, applied to the Federal Court for an order authorising a protected action ballot. The proposed ballot sought to determine whether the employees wished to take industrial action in the form of a strike or other form of stoppage. McCain Foods opposed the application on the basis that the ballot was not in compliance with the Fair Work Act 2009 (Cth) and that the proposed action would cause substantial harm to the business. The court was required to determine whether the ballot complied with the Act and whether it was appropriate to authorise the ballot.

The central legal issue before the court was whether the proposed ballot complied with the requirements of section 338 of the Fair Work Act. This section sets out the circumstances in which a protected action ballot may be held, including that it must be for the purpose of advancing a claim of the employees. The court had to consider whether the ballot was genuinely intended to advance a claim of the employees and whether it complied with the other requirements of the Act. The court also needed to consider whether the proposed action would cause substantial harm to the business, and whether this was a relevant consideration in deciding whether to authorise the ballot.

The court found that the proposed ballot complied with the requirements of the Fair Work Act. The court held that the ballot was genuinely intended to advance a claim of the employees and that it complied with the other requirements of the Act. The court also found that the proposed action would cause substantial harm to the business, but that this was not a relevant consideration in deciding whether to authorise the ballot. The court held that the appropriate test was whether the proposed action was likely to cause substantial harm to the business, and that this was not established on the evidence before the court. The court therefore authorised the proposed ballot.

The court ordered that a protected action ballot be held among the employees of McCain Foods (Aust) Pty Ltd to determine whether they wished to take industrial action. The ballot was to be conducted in accordance with the directions of the court and the provisions of the Fair Work Act. The court also ordered that the ballot papers be distributed and collected by a person appointed by the Fair Work Commission. The orders were to take effect immediately and were to remain in force until the ballot had been conducted and the result declared.

“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