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
Bega Cheese Limited
(B2019/581)

DEPUTY PRESIDENT DEAN

SYDNEY, 26 JULY 2019

Proposed protected action ballot of employees of Bega Cheese Limited.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Bega Cheese Limited (Respondent).

[2] On 26 July 2019, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Bradley Hattenfels declared on 24 July 2019, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR710770.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed industrial action ballot by Bega Cheese Limited's employees was protected action under the Fair Work Act 2009. The respondents, Bega Cheese Limited, argued that the ballot was not protected action and sought an injunction to prevent it. The Full Bench of the Fair Work Commission, presided over by Deputy President J.C. Lowe, heard the matter. The central legal issue was whether the proposed ballot constituted protected action under the Fair Work Act. This involved interpreting the provisions of the Act concerning protected industrial action and the criteria that must be met for such action to be considered protected.

The Commission examined the definition of protected action in the Fair Work Act and the specific requirements that must be satisfied for a ballot to be considered protected. The AMWU argued that the ballot was a genuine preliminary step to a protected industrial action, as it was a legitimate means of ascertaining employee support for potential industrial action. Bega Cheese Limited contended that the ballot was not a genuine preliminary step, as it was conducted in bad faith and without proper regard for the legal requirements. The Full Bench found that the ballot was a genuine preliminary step to a protected industrial action, as it was conducted in accordance with the legal requirements and was a legitimate means of ascertaining employee support. The Commission emphasised the importance of the good faith requirement and noted that the ballot was conducted in a manner consistent with the legal requirements.

The Full Bench declared that the proposed ballot of employees of Bega Cheese Limited was protected action under the Fair Work Act. The Commission noted that the ballot was conducted in good faith and in accordance with the legal requirements, and that it was a genuine preliminary step to a protected industrial action. The Full Bench also noted that the ballot was not conducted in bad faith or with improper motives, and that it was not an unreasonable or oppressive action. The Full Bench made no orders regarding the injunction sought by Bega Cheese Limited, as the declaration of protected action rendered the injunction unnecessary.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established