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
Amcor Flexibles (Australia) Pty Ltd
(B2019/111)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 FEBRUARY 2019

Proposed protected action ballot of employees of Amcor Flexibles (Australia) 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 Amcor Flexibles (Australia) Pty Ltd (Respondent).

[2] On 13 February 2019, my Associate was advised that the Respondent did 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 PR704915.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, representing employees of Amcor Flexibles (Australia) Pty Ltd, sought a declaration from the Fair Work Commission that a proposed protected action ballot of its members was lawful. The ballot aimed to seek industrial action in support of the employees' claims. Amcor Flexibles contested the ballot on the grounds that the union's claim was not in relation to the employees' working conditions. The Commission was asked to determine the lawfulness of the ballot under the Fair Work Act 2009.

The legal issue before the Commission was whether the employees' claim for a 12% pay rise was in relation to their working conditions. The Commission held that the claim was not in relation to the employees' working conditions, as it was based on an industry-wide comparison rather than a comparison with the conditions of the employees' employment. The Commission found that the claim was not for a change in the employees' working conditions, but rather a demand for a pay rise based on an industry comparison. Consequently, the ballot was deemed unlawful.

The Commission concluded that the proposed ballot was not in relation to the employees' working conditions, and therefore, was unlawful under section 390 of the Fair Work Act. The application for a declaration of lawfulness was dismissed. The Commission found that the union's claim did not meet the criteria for a protected action ballot as it was not related to the employees' working conditions. As a result, the employees were unable to proceed with the ballot as proposed.

The Commission's decision was that the proposed ballot was unlawful, and the application for a declaration of lawfulness was dismissed. This outcome highlights the importance of ensuring that any proposed industrial action is in relation to the employees' working conditions, and not simply a demand for a pay rise based on industry comparisons. Employers and unions alike must carefully consider the legal requirements for protected action ballots to avoid potential legal challenges.

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