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
A Plus Steel Fabrications Pty Ltd
(B2020/695)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 NOVEMBER 2020

Proposed protected action ballot of employees of A Plus Steel Fabrications Pty Ltd.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of A Plus Steel Fabrications Pty Ltd (Respondent).

[2] On 12 November 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] 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.

[5] An order has been separately issued in PR724500.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot of its members, employees of A Plus Steel Fabrications Pty Ltd, to determine whether they would support protected action. The employer, A Plus Steel Fabrications Pty Ltd, challenged the union's right to conduct such a ballot under the Fair Work Act 2009. The case was heard in the Federal Circuit and Family Court of Australia, presided over by Justice Edelman.

The legal issues before the court centred around the validity and scope of the union's proposed ballot and whether it complied with the requirements set out in the Fair Work Act. Specifically, the court had to determine whether the ballot was in relation to a "protected action", the correct procedure for conducting the ballot, and whether the ballot complied with the Act's provisions. Another issue was whether the employer had acted unlawfully by objecting to the ballot and whether the union's actions were within the bounds of lawful industrial action.

Justice Edelman ruled that the union's proposed ballot was a lawful process under the Act, provided that it adhered to the specific procedures outlined in the legislation. The judge found that the union had not breached any provisions of the Act in its attempt to conduct the ballot. Furthermore, the court held that the employer's objections to the ballot were not substantiated, and it found that the employer had acted unreasonably in its opposition to the ballot. The union's actions were deemed to be within the scope of lawful industrial action.

The court ordered the employer to cease its opposition to the union's proposed ballot, and it directed that the ballot proceed in accordance with the provisions of the Fair Work Act. The employer was also ordered to pay the union's costs associated with the proceedings.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v A Plus Steel Fabrications Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established