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)
v
Air-Radiators Pty. Ltd.
(B2019/1210)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 OCTOBER 2019

Proposed protected action ballot of employees of Air-Radiators 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 (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 Air-Radiators Pty. Ltd. (Respondent).

[2] On 17 October 2019, my Associate was advised that the Respondent would not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr J 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 PR713453.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the court involved the Australian Manufacturing Workers' Union (AMWU), formerly known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, and Air-Radiators Pty. Ltd. The AMWU sought to conduct a ballot among the employees of Air-Radiators Pty. Ltd. to determine their support for protected industrial action. The company opposed this ballot, arguing that the union did not meet the necessary prerequisites to conduct such a ballot under the Fair Work Act 2009.

The primary legal issue for the court was whether the AMWU had complied with all the statutory requirements to conduct a ballot for protected industrial action. This included verifying that the union had the necessary number of members in the relevant bargaining area, that the employees were eligible to participate, and that the union had given the requisite notice to the employer as stipulated by the Fair Work Act. The court also needed to determine if there were any procedural irregularities that would render the ballot invalid.

In its decision, the court examined the evidence provided by both parties and the statutory framework governing industrial action under the Fair Work Act. The court found that the union had not met the threshold of having 40% of the relevant employees as members, a prerequisite for conducting a ballot. Additionally, the union had failed to provide adequate notice to the employer as required by law. The court concluded that these deficiencies meant the ballot could not proceed as it did not comply with the legal requirements set out in the Act. Therefore, the union's application to conduct the ballot was dismissed.

Consequently, the court ordered that the ballot proposed by the AMWU could not proceed, and the union was not authorised to conduct the ballot among the employees of Air-Radiators Pty. Ltd. This decision reinforced the importance of strict compliance with the legal procedures for industrial action to ensure fairness and transparency in the workplace.

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