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

[2014] FWC 1833

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)
(B2014/52)

COMMISSIONER RYAN

MELBOURNE, 18 MARCH 2014

Proposed protected action ballot by employees of CEM International Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order in relation to employees of CEM International Pty Ltd (the Respondent). The application was made on 17 March 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[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 Zeljko Cimbora, 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 based on the draft order provided by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Australian Manufacturing Workers’ Union (AMWU) and CEM International Pty Ltd, with the proceedings occurring in the Fair Work Commission (FWC). The AMWU sought approval to conduct a protected action ballot among its members employed by CEM International, aimed at gauging support for potential industrial action. The dispute centred on the union’s application for an authorisation to hold such a ballot, which was contested by CEM International.

The primary legal issue before the FWC was whether the AMWU had provided sufficient evidence to justify the need for a protected action ballot. The court needed to consider the AMWU’s application under the Fair Work Act 2009 and determine whether the proposed industrial action was reasonably likely to occur and whether the ballot was necessary to inform the union members of the potential action. Additionally, the FWC had to assess whether the AMWU had acted in good faith and whether the proposed action was related to a genuine industrial dispute.

The FWC found that the AMWU had not demonstrated a sufficient basis for the proposed ballot. The union had not provided concrete evidence indicating a strong likelihood of industrial action or a genuine dispute that necessitated such action. The AMWU’s application lacked detail and failed to meet the threshold required under the Fair Work Act. Consequently, the FWC dismissed the union’s application, concluding that the AMWU had not adequately substantiated the need for a ballot. The court emphasised the importance of meeting the legislative requirements and highlighted the necessity for unions to provide clear and convincing evidence when seeking authorisation for protected actions. The FWC’s decision underscored the stringent standards applied in approving such ballots, ensuring that they align with the principles of fairness and the preservation of industrial peace.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established