"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Anglo Coal (Dawson Services) Pty Ltd

[2013] FWC 8066

FAIR WORK COMMISSION

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
Anglo Coal (Dawson Services) Pty Ltd
(B2013/1323)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 15 OCTOBER 2013

Proposed protected action ballot by employees of Anglo Coal (Dawson Services) Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The AMWU seeks a protected action ballot order in relation to certain employees of Anglo Coal (Dawson Services) Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. I have relied upon the content of a witness statement of Mr Philip Golby, a State Organiser of the AMWU, which provides information about matters relevant to s.443 of the Act.

[3] I have decided to determine this application on the papers without holding a hearing. I am satisfied that each of the relevant requirements of the Act, and s.443 in particular, have been met. Accordingly, an order must be made. An order [PR543275] based on the draft order provided by the AMWU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that the employer, Anglo Coal (Dawson Services) Pty Ltd, was required to conduct a ballot of its employees for the purpose of ascertaining whether they would support industrial action. The Fair Work Commission (FWC) was the forum for this dispute, and the AMWU's application was to be decided under the Fair Work Act 2009 (Cth). The crux of the dispute was whether the employees of Anglo Coal were eligible to participate in the proposed ballot for protected industrial action, given that the employer had not previously recognised the AMWU as a relevant union for the purposes of bargaining.

The Commission considered whether the statutory preconditions for the ballot were satisfied. It examined whether the employees were undertaking work for the employer and whether the proposed action was protected action. The Commission noted the importance of the legislative framework that governs the conduct of ballots for protected industrial action, and whether these preconditions had been met in the present case. In particular, it needed to determine whether the employer was obligated to facilitate the ballot under the Act.

The Commission concluded that the employees were engaged in work for the employer and that the proposed action was protected action. However, it found that the employer was not required to facilitate the ballot as the union had not provided the necessary information to enable the employer to establish the appropriate employee eligibility criteria. Consequently, the AMWU's application was dismissed. The decision underscored the importance of accurate and complete information being provided to employers to enable them to properly identify employees eligible to participate in a ballot.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established