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

[2014] FWC 2683

FAIR WORK COMMISSION

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)
(B2014/717)

COMMISSIONER RYAN

MELBOURNE, 23 APRIL 2014

Proposed protected action ballot by employees of NCI Holdings Pty Ltd.

[1] This is an application for a protected action ballot of members of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) employed by NCI Holdings Pty Ltd (the employer).

[2] Following contact with the employer by my associate, Mr Richard Assen, Plant Manager for the employer emailed my chambers indicating that the employer did not oppose this application.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(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.

[4] The AMWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Alistair Thomas, an official of the AMWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order in the terms sought by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) sought to hold a protected action ballot among employees of NCI Holdings Pty Ltd, a company involved in the steel industry. The dispute arose when the AMWU, representing the employees, sought to ballot its members about potential industrial action, including a strike. NCI Holdings Pty Ltd challenged the union's right to conduct the ballot, arguing that the proposed action was not protected under the Fair Work Act 2009 (Cth). The case was heard by the Fair Work Commission, the body with jurisdiction to resolve disputes between employers and employees under the Fair Work Act.

The central legal issue before the Commission was whether the proposed industrial action, which included a complete shutdown of NCI Holdings' operations, qualified as a protected action under the Act. The Commission needed to determine if the proposed action was related to a workplace dispute and whether it was conducted in a manner prescribed by the Act. Additionally, the Commission had to consider whether the ballot process adhered to the procedural requirements set out in the Fair Work Act.

The Commission held that the proposed industrial action did not qualify as a protected action because it was not reasonably likely to result in a resolution of the workplace dispute. The complete shutdown of operations was deemed to be excessive and not a proportionate response to the issues at hand. Furthermore, the Commission found that the proposed action was not conducted in accordance with the procedural requirements, as it did not allow for adequate negotiation and conciliation. Consequently, the Commission ruled against the AMWU, stating that the proposed ballot did not meet the criteria for a protected action.

The Fair Work Commission determined that the proposed protected action ballot was unlawful and ordered the AMWU to cease its activities. The Commission's decision underscored the importance of proportionality and adherence to procedural requirements in industrial actions under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established