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

[2022] FWC 119

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)
v

Dollar Sweets Company Pty Limited(B2022/30)

COMMISSIONER O’NEILL

MELBOURNE, 24 JANUARY 2022

Proposed protected action ballot of employees of Dollar Sweets Company Pty Limited.

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Dollar Sweets Company Pty Limited (Respondent).

On 24 January 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Barry Terzic of the Applicant setting out the steps taken by it in bargaining with the Respondent and that it has been, and is, genuinely trying to reach agreement with the Respondent, I am satisfied that there is a notification time in relation to the proposed agreement and that the requirements in s.443(1) of the Act have been met.

An order has been separately issued in PR737702.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU), acting on behalf of certain employees of Dollar Sweets Company Pty Limited, sought a protected action ballot order under section 437 of the Fair Work Act 2009. The application was made to the Fair Work Commission, and the dispute centred on the AMWU’s proposed industrial action to be undertaken by employees of Dollar Sweets Company Pty Limited. The court received the application on 24 January 2022, and it was noted that Dollar Sweets Company Pty Limited did not oppose the application. Consequently, the Commissioner proceeded to determine the matter based on the documents submitted without the necessity for a hearing.

The primary legal issue before the Commissioner was whether the AMWU had fulfilled the statutory requirements to conduct a protected action ballot. Specifically, the court needed to verify if the union had genuinely attempted to reach an agreement with the employer and if the notification period mandated by section 443(1) of the Fair Work Act 2009 was met. The decision hinged on the declaration provided by Mr. Barry Terzic of the AMWU, which outlined the union's efforts in bargaining with Dollar Sweets Company Pty Limited and confirmed the union's ongoing attempts to reach an agreement.

After reviewing the evidence, the Commissioner found that the AMWU had indeed taken the necessary steps in bargaining and was genuinely trying to reach an agreement with the employer. The Commissioner was satisfied that the notification time for the proposed agreement was met and that all statutory requirements under section 443(1) of the Fair Work Act 2009 were adhered to. Consequently, the Commissioner granted the AMWU's application for a protected action ballot order. An additional order was separately issued in PR737702, formalising the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established