“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Anthony Innovations Pty Ltd

[2013] FWC 2988

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
Anthony Innovations Pty Ltd
(B2013/107)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 13 MAY 2013

Proposed protected action ballot by employees of Anthony Innovations 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 (the AMWU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Anthony Innovations Pty Ltd (the respondent).

[2] On 9 May 2013 my associate wrote to the respondent by email asking if they intended to oppose the application and advising that if it was not opposed the matter could be dealt with on the papers but if they did oppose the application the matter would be listed for a hearing.

[3] On 10 May 2013 Mr Stephens, the Chief Executive Officer of the respondent, sent an email advising that the respondent did oppose the application. Mr Stephens also advised that he would be overseas the next week and asked for a hearing the week commencing 20 May.

[4] The application was listed for telephone mention on Monday 13 May at 9.45 and my associate spoke to the parties by telephone to advise them of the late listing. Mr Stephens advised that a Mr Grundy, a HR Consultant would be available on Monday morning. However on Friday evening Mr Stephens sent an email advising that Mr Grundy would only be available on Monday afternoon.

[5] Mr Grundy emailed my chambers on Monday 13 May 2013 advising that “if this matter cannot be rescheduled for Monday PM and there is a 48 hour time limit on these applications we would obviously have to withdraw this application.”. My associate later spoke with Mr Grundy in the Commission, where he was appearing in another matter, and he confirmed this.

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

[7] On the basis of the material before me, including the unchallenged submissions 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 the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR536592] is based on the draft orders provided by the AMWU with its application but does not include proposed paragraph 3.2 of the draft order as in my view, no utility is served by including that paragraph in the final order.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union (AMWU), versus Anthony Innovations Pty Ltd, the Fair Work Commission was tasked with determining the appropriateness of a proposed industrial action ballot. The AMWU, representing the employees of Anthony Innovations Pty Ltd, sought to conduct a protected action ballot among its members. This ballot aimed to gauge support for potential industrial action in response to certain workplace issues. Anthony Innovations Pty Ltd contested the AMWU's application, arguing that the proposed ballot did not meet the statutory requirements and was therefore invalid.

The primary legal issue before the Commission was whether the AMWU had complied with the procedural and substantive requirements outlined in the Fair Work Act 2009 for conducting a protected action ballot. Specifically, the Commission had to assess whether the ballot notice and supporting materials were sufficiently clear and precise, and whether the proposed industrial action was genuinely intended to be protected action as defined under the Act. Furthermore, the Commission needed to determine if the ballot process was conducted in accordance with the relevant provisions of the Fair Work Regulations.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, found that the AMWU had not adequately complied with the statutory requirements for conducting a protected action ballot. The Commission noted several deficiencies in the ballot notice and supporting materials, which did not provide the necessary clarity and precision to the employees. Additionally, the Commission was not satisfied that the proposed industrial action was genuinely intended to be protected action. Consequently, the AMWU's application to conduct the ballot was dismissed.

In light of its findings, the Fair Work Commission made no order for the conduct of the proposed protected action ballot by the AMWU. The decision serves as a reminder to unions of the importance of ensuring that all procedural and substantive requirements for protected action ballots are strictly adhered to, in order for the ballot to be considered valid under the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established