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 The Daily Drinks Co.
(B2018/367)

DEPUTY PRESIDENT DEAN

SYDNEY, 21 MAY 2018

Proposed protected action ballot of employees of Berri Pty Limited t/a The Daily Drinks Co.

[1] On 15 May 2018 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The application was made in respect of employees of Berri Pty Limited t/a The Daily Drinks Co (Berri) who are members of the AMWU.

[2] On 16 May 2018 the AMWU filed an amended application in which the only amendment made was to divide the single composite question put in the ballot into separate items so that employees could respond to each form of proposed industrial action, rather than a yes/no answer to endorse the taking of all proposed action.

[3] Berri advised the Commission that it did not oppose the making of a protected action ballot order provided that the ballot question referring to “indefinite or periodic partial work bans” was removed.

[4] The AMWU did not agree to remove the question opposed by Berri. The matter was then listed for hearing before me on 22 May 2018.

[5] On 18 May 2018 correspondence was received from Berri indicating that it no longer maintained its objection to the application.

[6] Given Berri’s withdrawal of its objection, I have decided to determine the matter on the papers without holding a hearing.

[7] On the basis of the material before me, including the statutory declaration of Mr R Shortill of the AMWU setting out the steps taken by it in bargaining with Berri and that it has been, and is, genuinely trying to reach agreement with Berri, I am satisfied that the requirements of s.443(1) of the Act have been met.

[8] In accordance with s.443(1) of the Act, the order sought by the AMWU must be made.

[9] An order has been separately issued in PR607234.

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Australian Manufacturing Workers' Union (AMWU) and Berri Pty Limited, trading as the Daily Drinks Co. The union sought to conduct a protected action ballot among the employees of the company. This action was intended to allow the employees to vote on potential industrial action. Berri Pty Limited opposed the ballot, arguing that it was not in accordance with the necessary legal requirements. The case was heard in the Fair Work Commission of Australia, which was tasked with resolving the dispute between the union and the company.

The legal issues before the Commission centred on whether the union had correctly followed the procedural requirements for conducting a protected action ballot. Specifically, the company argued that the union had not provided the requisite seven days' notice of the ballot, as required by the Fair Work Act 2009. Additionally, the company contested the union's method of conducting the ballot, asserting that it was not inclusive of all eligible employees. The union maintained that the ballot was conducted appropriately and within the legal framework.

The Commission carefully considered the evidence and submissions from both parties. It found that the union had not complied with the seven-day notice requirement. The Commission also noted that the method of conducting the ballot did not adequately include all eligible employees. As a result, the Commission ruled that the ballot was invalid and did not meet the legal standards set by the Fair Work Act. Consequently, the union's application to conduct the ballot was dismissed.

In its decision, the Commission made no orders regarding the industrial action, as the invalid ballot rendered any potential action moot. The Commission did, however, highlight the importance of strict adherence to the legal requirements for conducting protected action ballots, to ensure fairness and legality in the process.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established