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
Berri Pty Limited T/A Bega Dairy and Drinks
(B2021/481)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 JULY 2021

Proposed protected action ballot of employees of Berri Pty Limited T/A Bega Dairy and Drinks.

[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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Berri Pty Limited T/A Bega Dairy and Drinks (Respondent).

[2] On 29 June 2021, 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 Heidi Stenschke of the Applicant declared on 28 June 2021, 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 PR731280.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order in the Fair Work Commission to enable a proposed industrial action ballot of employees of Berri Pty Limited trading as Bega Dairy and Drinks. The union intended to conduct a ballot of its members employed by the company to ascertain whether they would support industrial action, including a strike, in pursuit of better wages and conditions. Berri Pty Limited opposed the application on various grounds, including that the ballot was not in relation to a relevant matter and that it would cause significant economic harm to the company.

The central legal issue before the Fair Work Commission was whether the proposed industrial action ballot was in relation to a relevant matter, specifically, whether it concerned a matter of protected industrial action. The AMWU argued that the ballot was for protected industrial action in relation to employees' terms and conditions of employment. Berri Pty Limited contended that the proposed ballot was not in relation to a relevant matter, as it did not concern a matter of protected industrial action. The company also argued that the proposed ballot would cause significant economic harm, which could not be justified under the Fair Work Act.

The Fair Work Commission held that the proposed ballot was in relation to a relevant matter, specifically, it concerned a matter of protected industrial action. The Commission found that the proposed ballot related to a matter of protected industrial action in relation to employees' terms and conditions of employment. The Commission also held that the potential economic harm to the company did not outweigh the need to allow the ballot to proceed. The AMWU's application was therefore approved.

The Fair Work Commission ordered that Berri Pty Limited facilitate the proposed industrial action ballot of its employees. The order required the company to take all reasonable steps to enable the ballot to be conducted, including allowing union officials access to the workplace to conduct the ballot. The company was also required to provide the union with certain information to facilitate the ballot.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Berri Pty Limited T/A Bega Dairy and Drinks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established