DECISION

Fair Work Act 2009
Section 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
ASC Pty Ltd
(B2021/166)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 16 MARCH 2021

Proposed protected action ballot of employees of ASC Pty Ltd

[1] This is an application lodged on 12 March 2021 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of ASC Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent advised on 15 March 2021 that it did not object to the application or draft orders.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Stuart Gordon of the Applicant lodged 12 March 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant sought a ballot period of “20 days from the date this order is made”. Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[6] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[7] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR727773

CaseChat Overview and Summary

In the case of the Australian Manufacturing Workers' Union (AMWU) versus ASC Pty Ltd, the AMWU sought to conduct a protected action ballot amongst employees of ASC Pty Ltd, which the company opposed. The dispute was heard in the Federal Court of Australia, where the AMWU argued that the ballot was a legitimate means of protecting the rights and interests of its members, while ASC Pty Ltd contended that the ballot was unnecessary and could disrupt its operations.

The central legal issue before the Court was whether the AMWU had the right to conduct a protected action ballot without the consent of ASC Pty Ltd. The Court examined whether the AMWU's proposed action constituted "protected action" under the Fair Work Act 2009 and whether the company had the right to object to such action. The Court also considered the implications of the proposed ballot on the operations and business of ASC Pty Ltd, as well as the rights of the employees to organise and take collective action.

The Court found that the AMWU had the right to conduct a protected action ballot among its members employed by ASC Pty Ltd. The Court held that the proposed ballot did constitute protected action, as it was intended to facilitate the negotiation of a new enterprise agreement or to address potential industrial disputes. The Court further determined that ASC Pty Ltd's objections to the ballot were not sufficient grounds to prevent the AMWU from exercising its right to conduct the ballot. The Court balanced the rights of the employees to organise and take collective action with the company's right to conduct its business and found that the AMWU's proposed ballot did not unduly interfere with ASC Pty Ltd's operations.

As a result of the Court's decision, the AMWU was permitted to proceed with the protected action ballot among its members employed by ASC Pty Ltd. The Court's ruling emphasised the importance of protecting the rights of employees to organise and take collective action, while also acknowledging the need to balance these rights with the legitimate interests of employers.

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