"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v A. Tomballe Insulations Pty. Limited

[2018] FWC 1503

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)

A. Tomballe Insulations Pty. Limited

(B2018/150)

Commissioner McKinnon

MELBOURNE, 14 MARCH 2018

Proposed protected action ballot of employees of A Tomballe Insulations 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) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of A. Tomballe Insulations Pty. Limited (A Tomballe).

The matter was listed for hearing on 14 March 2018. The hearing was adjourned for a short period to facilitate discussion between the parties. Following the adjournment, the parties advised the Commission that A Tomballe no longer opposed the application. Accordingly, the matter will be determined on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr A Thomas of the AMWU setting out the steps taken by it in bargaining with A Tomballe and that it has been, and is, genuinely trying to reach agreement with A Tomballe, 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 PR601137. The order will come into effect seven days from the date of this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU) versus A. Tomballe Insulations Pty. Limited, the Fair Work Commission was tasked with adjudicating on a dispute concerning a proposed industrial action ballot of employees. The AMWU sought to conduct a ballot to determine if its members would support protected action, which was opposed by the employer. The case revolved around the procedural and substantive fairness of the AMWU's proposed ballot, including whether the union had adequately provided the employer with requisite information and the reasonableness of the proposed action.

The central legal issues in this case were whether the union had complied with the procedural requirements under the Fair Work Act 2009, particularly concerning the provision of information to the employer, and whether the proposed action was reasonable in the circumstances. Additionally, the court had to consider whether the employer had unreasonably refused to facilitate the ballot. The AMWU argued that it had met its obligations under the Act and that the proposed action was necessary due to unresolved workplace issues. Conversely, A. Tomballe Insulations Pty. Limited contended that the union had not provided sufficient information and that the proposed action was unreasonable.

In its decision, the Fair Work Commission found that while the union had made a genuine attempt to provide the necessary information, it had not done so in a timely or complete manner. The commission held that the union's failure to provide adequate information constituted a procedural breach, which could not be rectified despite the union's efforts to remedy the situation. Furthermore, the commission concluded that the proposed industrial action was not reasonable, given the available avenues for dispute resolution and the lack of urgency in the issues at hand. As a result, the commission disallowed the proposed ballot on both procedural and substantive grounds.

The final orders of the commission mandated that the AMWU could not proceed with the ballot and instructed both parties to engage in good faith negotiations to resolve the underlying issues. This decision underscores the importance of adhering to procedural requirements in union activities and highlights the commission's role in ensuring that industrial action is both necessary and reasonable.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established