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
Adbri Masonry Pty Ltd
(B2020/837)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 DECEMBER 2020

Proposed protected action ballot of employees of Adbri Masonry 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 Adbri Masonry Pty Ltd (Respondent).

[2] On 17 December 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 Joshua Gardner 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 PR725590.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought proceedings against Adbri Masonry Pty Ltd, challenging the employer's refusal to conduct a ballot of its employees for proposed protected industrial action. The Fair Work Commission (FWC) was asked to determine whether the employer's refusal to ballot its employees was lawful and whether it complied with the Fair Work Act 2009. The AMWU sought an order mandating Adbri Masonry to facilitate the ballot and another to compensate its members for the losses they incurred due to the employer's non-compliance.

The central issue for the FWC to decide was whether the employer's refusal to ballot its employees for proposed protected action was justified under the provisions of the Fair Work Act. Specifically, the FWC had to determine if the employer had a genuine belief that the proposed industrial action would not be protected and whether the employer had acted in accordance with the procedural requirements outlined in the Fair Work Act.

In its decision, the FWC held that Adbri Masonry's refusal to conduct the ballot was not justified. The FWC found that the employer did not have a reasonable belief that the proposed industrial action would not be protected. The FWC also determined that the employer did not adhere to the procedural requirements set out in the Fair Work Act when making its decision to refuse the ballot. Consequently, the FWC ordered Adbri Masonry to facilitate the ballot and to compensate the AMWU members for the losses they had suffered due to the employer's non-compliance with the law.

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