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

[2022] FWC 847

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

BOC Limited

(B2022/299)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 12 APRIL 2022

Proposed protected action ballot of employees of BOC 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 (Act) for a protected action ballot order in relation to certain employees of BOC Limited (the Respondent).

On 12 April 2022, my Associate was advised that the Respondent did not object to 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 declaration of Mr Glenn Thompson 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.

An order has been separately issued in PR740310.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) received an application from the Australian Manufacturing Workers' Union (AMWU) under section 437 of the Fair Work Act 2009, seeking a protected action ballot order concerning certain employees of BOC Limited. This application was made to facilitate a proposed protected action ballot of BOC Limited's employees. The AMWU argued that it had been genuinely attempting to reach an agreement with BOC Limited, as required by section 443(1) of the Act.

The key legal issues that the FWC had to decide involved verifying whether the AMWU had fulfilled the statutory prerequisites for a protected action ballot. This included confirming that the union had indeed been genuinely trying to reach an agreement with BOC Limited and that the stipulated notification period had elapsed. The FWC needed to examine the evidence provided by the AMWU, specifically the declaration by Mr Glenn Thompson, to ascertain if the union had genuinely engaged in bargaining and if the conditions for a ballot were met. The FWC was also required to consider the absence of objections from BOC Limited in their decision-making process.

The FWC determined that, based on the material presented, including Mr Glenn Thompson's declaration, the union had been genuinely attempting to reach an agreement with BOC Limited. The FWC was satisfied that the notification period had elapsed and that the requirements of section 443(1) of the Act had been met. Consequently, the FWC granted the AMWU's application and issued a separate order in PR740310. Given that BOC Limited did not object to the application, the FWC decided to determine the matter on the basis of the available documentation without holding a hearing.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established