“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v B&D Australia Pty Ltd T/A B&D Australia Summary

[2018] FWC 6246

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)

B&D Australia Pty Ltd T/A B&D Australia

(B2018/896)

Deputy President Gostencnik

MELBOURNE, 9 OCTOBER 2018

Proposed protected action ballot of employees of B&D Australia Pty Ltd.

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 B&D Australia Pty Ltd (Respondent).

On 8 October 2018 my associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr R Kearnan 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 PR701153.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an action against B&D Australia Pty Ltd, trading as B&D Australia, in the Fair Work Commission. The union sought approval for a proposed industrial action ballot of the company's employees. The union aimed to conduct a ballot to determine if the employees supported a protected action in response to what they perceived as unfair treatment by the employer. The case centred on whether the union had adequately substantiated its claim of unfair treatment and if the proposed ballot met the legal requirements for such an action.

The primary legal issues revolved around the procedural and substantive requirements for a protected action ballot under the Fair Work Act 2009. The court had to determine if the union had provided sufficient evidence of unfair treatment and if the ballot was necessary and appropriate under the circumstances. Additionally, the court examined whether the proposed ballot complied with the statutory requirements and if it was likely to result in a protected action.

The Fair Work Commission found that the union had not sufficiently demonstrated that the employees were being treated unfairly, as required by the Act. The union's evidence did not meet the threshold for establishing a genuine dispute of fact or opinion that warranted a protected action ballot. Consequently, the Commission ruled that the union's application for the ballot was not justified. The court held that the union's claims were not substantiated and did not meet the legal criteria for proceeding with a ballot. As a result, the application was dismissed.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v B&D Australia Pty Ltd T/A B&D Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established