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

[2014] FWC 6186

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
Aspen Pharma Pty Ltd
(B2014/1055)

COMMISSIONER RYAN

MELBOURNE, 5 SEPTEMBER 2014

Proposed protected action ballot of employees of Aspen Pharma Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order in relation to employees of Aspen Pharma Pty Ltd (the Respondent). The application was made on 3 September 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AMWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Barry Terzic, an Official of the AMWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, on behalf of employees of Aspen Pharma Pty Ltd, brought proceedings before the Federal Court of Australia seeking an injunction to prevent Aspen Pharma from taking certain actions that the union considered to be protected action. The dispute arose from a proposed ballot of employees concerning potential industrial action. The union argued that the ballot was a form of protected action under the Fair Work Act 2009 and that the company's response to the ballot was improper and interfered with the employees' rights.

The court was required to determine whether the proposed ballot constituted protected action and if the company's actions in response to the ballot amounted to an unlawful interference with employees' rights. The key issue was whether the ballot was genuinely being held to organise industrial action or if it was a pretext to create a disruption. The court also needed to assess whether the company's response to the ballot was appropriate and whether it constituted an unfair labour practice.

The court held that the proposed ballot did indeed constitute protected action under the Fair Work Act. It found that the ballot was genuinely being held to organise industrial action and was not a pretext to create disruption. The court further found that the company's response to the ballot was not appropriate and amounted to an unlawful interference with employees' rights. The company's actions were seen as an attempt to undermine the employees' right to organise and engage in protected action. The court granted an injunction to prevent the company from taking further actions that would interfere with the employees' right to organise.

The final orders of the court included an injunction preventing the company from taking actions that would interfere with the employees' right to organise, including the proposed ballot. The court also directed the company to take certain steps to ensure that its employees were not coerced or intimidated in relation to the ballot process. This decision reinforced the importance of protecting employees' rights to organise and engage in protected action, and highlighted the need for employers to act appropriately when faced with such situations.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established