“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v BAE Systems Australia Limited

[2022] FWC 544

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

BAE Systems Australia Limited

(B2022/191)

VICE PRESIDENT CATANZARITI

SYDNEY, 11 MARCH 2022

Proposed protected action ballot of employees of BAE Systems Australia Limited

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 (Cth) (Act) for a protected action ballot order in relation to certain employees of BAE Systems Australia Limited (Respondent).

On 10 March 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Tim Ferguson of the Applicant declared on 9 March 2022, 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 PR739232.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) sought an order from the Fair Work Commission for a protected action ballot, related to certain employees of BAE Systems Australia Limited. The AMWU applied under section 437 of the Fair Work Act 2009 for this order, citing its efforts in bargaining with BAE Systems and its intent to reach an agreement. BAE Systems did not oppose the application. The matter was determined without a hearing, based on the evidence provided, including the AMWU's statutory declaration affirming its genuine attempts to negotiate with the employer.

The primary legal issue before the court was whether the AMWU had fulfilled the requirements for a protected action ballot under the Fair Work Act 2009. Specifically, the court needed to assess whether the union had met the notification time and adhered to the provisions outlined in section 443(1) of the Act. The AMWU argued that it had been genuinely attempting to reach an agreement with BAE Systems, a necessary condition for proceeding with a protected action ballot. BAE Systems did not contest these claims, which facilitated the court’s determination.

The Fair Work Commission found that the AMWU had met the statutory requirements for initiating a protected action ballot. The court was satisfied that the union had indeed been genuinely trying to reach an agreement with BAE Systems, as evidenced by the statutory declaration and other materials presented. Given the employer's lack of opposition and the union's compliance with the Act, the Commission concluded that the AMWU was entitled to proceed with the ballot. The decision was made in light of these findings and the absence of any contest from BAE Systems.

The Fair Work Commission issued an order in PR739232, permitting the AMWU to conduct a protected action ballot for its members. This decision was grounded on the union's demonstration of good faith negotiations with BAE Systems and its compliance with the legislative requirements. The court’s order reflects the AMWU's successful application under section 437 of the Fair Work Act 2009, enabling the union to proceed with its proposed industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established