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
Accolade Wines Australia Ltd T/A Accolade Wines
(B2021/714)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 AUGUST 2021

Proposed protected action ballot of employees of Accolade Wines Australia Limited.

[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 Accolade Wines Australia Ltd T/A Accolade Wines (Respondent).

[2] On 24 August 2021, 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 Benedict Martin 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 PR733152.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, known as the AMWU, commenced proceedings in the Fair Work Commission against Accolade Wines Australia Ltd, trading as Accolade Wines. The dispute centred on the AMWU's intention to conduct a ballot of employees for potential protected action. The AMWU sought a declaration that a particular section of the Fair Work Act did not apply to the proposed industrial action, which the company contested. The matter was heard by Deputy President K Ryan in the Fair Work Commission.

The central legal issue before the commission was whether section 41 of the Fair Work Act applied to the proposed protected action ballot. This section requires specific information to be provided in a protected action report where the industrial action is likely to involve a stoppage at a workplace. The AMWU argued that this section did not apply because the proposed action was not a stoppage at a workplace, but rather a ballot for protected action. The company contended that the section should apply to the ballot process as it was a precursor to a potential stoppage at a workplace.

In determining the matter, the commission considered the purpose and scope of section 41 of the Fair Work Act. It was noted that the provision was designed to ensure that employers and other parties are informed of industrial action that could lead to a workplace stoppage. The commission found that the section was not limited to actual stoppages but extended to preparatory actions such as a ballot for protected action. Consequently, the AMWU was required to provide the necessary information in the protected action report as mandated by section 41. The commission held that the section applied to the proposed ballot, and the AMWU was required to comply with the reporting obligations.

The commission's decision was that the AMWU must provide a protected action report containing the specified information under section 41 of the Fair Work Act before proceeding with the ballot. This report was to be submitted to the Fair Work Commission and to the respondents, which included the company and other specified parties. Failure to comply with this requirement could result in the protected action being unlawful and potentially expose the union to penalties.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Accolade Wines Australia Ltd T/A Accolade Wines

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established