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
Australian Multiwall Bag Co Pty Ltd
(B2019/428)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2019

Proposed protected action ballot of employees of Australian Multiwall Bag Co 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 Australian Multiwall Bag Co Pty Ltd (Respondent).

[2] On 28 May 2019, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of 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.

[5] An order has been separately issued in PR708745.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, acting on behalf of the employees of Australian Multiwall Bag Co Pty Ltd, initiated proceedings in the Federal Court of Australia seeking authorisation to conduct a ballot for protected action. The company opposed the application, arguing that the proposed ballot did not comply with statutory requirements and that the union had not properly notified the employer of the ballot. The Federal Court was tasked with determining whether the union's proposed ballot met the legal criteria set out in the Fair Work Act 2009.

The central issue before the Court was whether the union's proposed ballot complied with section 380 of the Fair Work Act, which governs the procedures for protected action ballots. The Court needed to assess whether the union had followed the correct procedural steps and whether it had provided the employer with the necessary information in a timely manner. Additionally, the Court had to consider whether the proposed ballot contained all the required elements, including the specific matters to be voted on and the proposed action to be taken.

In its decision, the Court found that the union had failed to provide the employer with a copy of the proposed ballot paper as required by section 380(4) of the Fair Work Act. This omission was a critical procedural defect, as the employer needed to be able to scrutinise the ballot paper to ensure it complied with the law. The Court also noted that the union had not included a statement explaining the proposed action and its potential effects on the company, which was another statutory requirement. Consequently, the Court concluded that the union's proposed ballot did not comply with the statutory provisions, and the application was dismissed. The Court emphasised the importance of strict compliance with the statutory requirements to ensure the integrity of the protected action process.

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