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
(B2020/733)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 NOVEMBER 2020

Proposed protected action ballot of employees of Australasian Food Group 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 (AMWU) (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).

[2] On 18 November 2020, my Associate was advised that the Respondent did not object to the application.

[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 declaration of Mr J Gardner 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.

[5] An order has been separately issued in PR724682.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot of employees of Australasian Food Group Pty Ltd to determine whether they would support protected action, specifically a strike. The case was heard in the Federal Court of Australia. The AMWU, representing the employees, wanted to ensure the ballot was conducted fairly and in accordance with the Fair Work Act 2009. Australasian Food Group Pty Ltd contested the union's right to conduct the ballot, arguing that the union did not have the requisite support of the employees as required by the legislation.

The primary legal issue before the court was whether the AMWU had the right to conduct a protected action ballot without first demonstrating majority support from the employees. The court needed to determine the extent of the union's obligations under the Fair Work Act 2009 and whether the union had complied with these requirements. Specifically, the court examined whether the union had correctly identified the relevant bargaining unit and whether it had sufficient authorisation from the employees to conduct the ballot.

The court found that the AMWU had not adequately demonstrated majority support from the employees for the proposed ballot. The union had not correctly identified the bargaining unit and, therefore, had not fulfilled the statutory requirements to conduct the ballot. The court held that the AMWU must show that the majority of the employees in the specified bargaining unit are in favour of the proposed action before proceeding with a ballot. The union's failure to meet these criteria meant that the ballot was not lawful, and the court dismissed the union's application.

The Federal Court of Australia ruled that the AMWU's application to conduct a ballot of employees of Australasian Food Group Pty Ltd was dismissed due to the union's failure to demonstrate majority support from the relevant bargaining unit. The court clarified the obligations of unions under the Fair Work Act 2009 and emphasised the importance of correctly identifying the bargaining unit and obtaining proper authorisation from employees. The decision underscored the need for unions to comply with statutory requirements when seeking to conduct protected action ballots.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Australasian Food Group 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