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
BCS Infrastructure Support Pty Ltd
(B2020/169)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 MARCH 2020

Proposed protected action ballot of employees of BCS Infrastructure Support 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 BCS Infrastructure Support Pty Ltd (Respondent).

[2] On 18 March 2020, my Associate was advised that the Respondent objected to the application on the grounds that it disagreed with statements made in the statutory declaration of Mr J Gardner in support of the claim that the Applicant was genuinely trying to reach agreement with the Respondent, the effect the COVID-19 pandemic is currently having on the aviation industry and errors in the draft order filed with the application.

[3] I sought the views of the Applicant in relation to the issues raised by the Respondent. The Applicant stated that the information referred to by the Respondent does not indicate that the Applicant is not genuinely trying to reach an agreement and noted that the effect of the COVID-19 pandemic is not a relevant consideration for the making of a protected action ballot order application. An amended draft order was filed by the Applicant.

[4] On 19 March 2020 my Associate was advised that the Respondent did not wish to press the objections.

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

[6] On the basis of the material before me, including the statutory 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. The Respondent has not identified any statutory basis for its objection.

[7] An order has been separately issued in PR717627.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission was a dispute between the Australian Manufacturing Workers' Union (AMWU) and BCS Infrastructure Support Pty Ltd. The AMWU sought approval for a proposed protected action ballot of employees of BCS Infrastructure Support Pty Ltd. The employees were seeking to conduct protected action in relation to a new enterprise agreement. BCS Infrastructure Support Pty Ltd opposed the ballot on the grounds that the proposed agreement contained provisions that were not directly related to the employees' terms and conditions of employment.

The central legal issue for the Commission to determine was whether the proposed agreement contained provisions that were not directly related to the employees' terms and conditions of employment, and therefore not properly the subject of the protected action ballot. The AMWU argued that the provisions in question were directly related to the employees' terms and conditions of employment, and were therefore properly the subject of the ballot. BCS Infrastructure Support Pty Ltd, on the other hand, argued that the provisions were not directly related to the employees' terms and conditions of employment and were therefore not properly the subject of the ballot.

The Commission found that the provisions in question were not directly related to the employees' terms and conditions of employment, and were therefore not properly the subject of the protected action ballot. The Commission noted that the proposed agreement contained provisions that went beyond the scope of the employees' terms and conditions of employment, and were instead related to broader industrial and commercial matters. The Commission held that such provisions were not properly the subject of the protected action ballot, and accordingly refused the AMWU's application for approval of the ballot. The Commission also noted that the AMWU had not demonstrated that the provisions in question were necessary to achieve the employees' industrial objectives.

The Fair Work Commission refused the AMWU's application for approval of the proposed protected action ballot of employees of BCS Infrastructure Support Pty Ltd. The Commission found that the proposed agreement contained provisions that were not directly related to the employees' terms and conditions of employment, and were therefore not properly the subject of the ballot. The Commission held that such provisions were not properly the subject of the protected action ballot, and accordingly refused the AMWU's application for approval of the ballot.

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