“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Adelaide Brighton Cement Limited

[2022] FWC 1984

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

Adelaide Brighton Cement Limited

(B2022/1134)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 JULY 2022

Proposed protected action ballot of employees of Adelaide Brighton Cement 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 Adelaide Brighton Cement Limited (Respondent).

The Respondent did not take up any of the opportunities it was given to comment on 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 Stuart Gordon 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 PR744233.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide whether the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), could hold a ballot for protected industrial action against Adelaide Brighton Cement Limited. The AMWU sought to hold the ballot to allow its members, who were employees of Adelaide Brighton Cement Limited, to vote on whether to take protected industrial action due to the failure of the parties to reach an enterprise agreement. Adelaide Brighton Cement Limited did not participate in the proceedings, and the Deputy President determined the matter based on the written submissions and evidence provided by the AMWU.

The legal issues before the court were whether the AMWU had given adequate notification to Adelaide Brighton Cement Limited about the proposed protected action and whether the AMWU had genuinely attempted to reach an agreement with Adelaide Brighton Cement Limited before seeking to hold the ballot. The court needed to decide whether the AMWU had met the requirements of the Fair Work Act 2009, specifically section 437, which sets out the circumstances in which a protected action ballot order can be made. The court also needed to consider whether the AMWU had met the requirements of section 443(1) of the Act, which sets out the notification time for protected action.

The Deputy President found that the AMWU had given adequate notification to Adelaide Brighton Cement Limited and had genuinely attempted to reach an agreement with it. The Deputy President was satisfied that the AMWU had met the requirements of the Fair Work Act 2009, including the notification time requirement in section 443(1). The Deputy President noted that Adelaide Brighton Cement Limited had not participated in the proceedings and had not provided any evidence or submissions to counter the AMWU's application. Based on the evidence before the court, the Deputy President determined that the AMWU could hold a ballot for protected industrial action.

The Fair Work Commission ordered that the AMWU could hold a ballot for protected industrial action by its members, who were employees of Adelaide Brighton Cement Limited. The order was made under section 437 of the Fair Work Act 2009, which allows for a protected action ballot order to be made in certain circumstances. The order was issued without a hearing, as Adelaide Brighton Cement Limited had not participated in the proceedings. The AMWU could now proceed to hold the ballot and take protected industrial action if the majority of its members voted in favour of doing so.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established