“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Australasian Food Group Pty Ltd T/A Peters Ice Cream

[2023] FWC 1256

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

Australasian Food Group Pty Ltd T/A Peters Ice Cream

(B2023/499)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 29 MAY 2023

Proposed protected action ballot of employees of Australasian Food Group Pty Ltd

This is an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Australasian Food Group Pty Ltd (Respondent).

On 29 May 2023, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Raoul Wainwright 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.

An order has been separately issued in PR762589.

DEPUTY PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), for a protected action ballot order concerning certain employees of Australasian Food Group Pty Ltd, trading as Peters Ice Cream. The AMWU sought the order under section 437 of the Fair Work Act 2009, citing its efforts to reach an agreement with the employer and the necessity to ballot employees for protected industrial action. The Australasian Food Group Pty Ltd did not oppose the application, allowing the Deputy President to proceed with the determination on the basis of the provided documentation.

The legal issues central to this case revolved around whether the AMWU had met the statutory requirements for a protected action ballot under the Fair Work Act 2009, including the notification time for such a ballot and compliance with section 443(1) of the Act. Specifically, the Commission needed to ascertain if the AMWU had genuinely attempted to reach an agreement with the employer and if it had followed the necessary procedures to call for a ballot. The burden of proof was on the AMWU to demonstrate that it had fulfilled these obligations.

In its decision, the Deputy President found that the AMWU had provided sufficient evidence, including a declaration from Mr Raoul Wainwright, to satisfy the requirements for a protected action ballot. The AMWU's declaration detailed the steps taken during negotiations with the employer and affirmed the union's genuine attempts to reach an agreement. Given the employer's lack of opposition and the evidence presented, the Deputy President concluded that the AMWU had met the statutory criteria. Consequently, the application was granted, and an order was issued permitting the AMWU to proceed with the ballot.

The final order, issued in PR762589, authorised the AMWU to conduct a protected action ballot among the specified employees of Australasian Food Group Pty Ltd. This decision underscores the importance of following the legal processes outlined in the Fair Work Act when seeking to engage in protected industrial action, ensuring that unions and employers alike adhere to the requirements designed to facilitate fair negotiations and dispute resolution.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established