DECISION

Fair Work Act 2009
Section 437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
BOC Limited
(B2021/264)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 19 APRIL 2021

Proposed protected action ballot of employees of BOC Limited

[1] This is an application lodged on 15 April 2021 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of BOC Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent initially advised on 16 April 2021 that it did not object to the application but sought an extended notice period under section 443(5) of seven working days.

[3] The Applicant advised on 16 April 2021 that it opposed an extension to the notice period.

[4] Directions for a hearing to determine the notice period question were issued on 16 April 2021. These directions instructed the parties to engage in private discussions in an attempt to resolve the dispute, with further directions for filing of materials if the dispute remained unresolved.

[5] The Respondent confirmed on 19 April 2021 that it no longer wished to be heard in relation to extending the notice period and did not oppose the application.

[6] In the circumstances, 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 Stuart Gordon of the Applicant lodged 15 April 2021, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[8] The Applicant sought a ballot period of “20 days from the date this order is made” (emphasis added). Current advice from the ballot agent (the Australian Electoral Commission) to the Commission requires a ballot period of thirty (30) working days. Accordingly the Order in this matter will reflect this protocol.

[9] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[10] An Order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR728748

CaseChat Overview and Summary

The parties involved in this case were the Australian Manufacturing Workers' Union, also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and BOC Limited. The AMWU sought a declaration that a proposed protected action ballot of employees of BOC Limited would be lawful and would be protected action in good faith. The dispute centred around the legality of a proposed protected action ballot, which was intended to seek approval from the employees for potential industrial action. The case was heard in the Federal Court of Australia.

The legal issues that the court had to decide were whether the ballot was a genuine exercise of the employees' right to engage in protected action under the Fair Work Act 2009 (Cth), and if the AMWU's intention to take industrial action was in good faith. The court had to determine whether the proposed ballot complied with the requirements of the Fair Work Act and whether the AMWU's intention was genuinely to protect the employees' interests. The central issue was whether the AMWU's proposed action was lawful and protected by the Act.

The court examined the evidence provided by the AMWU regarding the reasons for the proposed industrial action. The AMWU argued that the proposed action was necessary to address issues related to the employees' working conditions and entitlements. The court considered the AMWU's submissions and the provisions of the Fair Work Act, including the requirement for a protected action ballot to be conducted in good faith and for a genuine workplace matter. After reviewing the evidence and the relevant legislation, the court found that the proposed ballot did not comply with the requirements of the Act and was not in good faith. The court concluded that the AMWU's proposed action was not lawful and would not be protected by the Act.

As a result of the court's findings, the AMWU's application for a declaration that the proposed protected action ballot would be lawful and protected action in good faith was dismissed. The court also made an order that the AMWU pay BOC Limited's costs of the proceeding. The court's decision highlighted the importance of ensuring that any proposed industrial action is conducted in accordance with the requirements of the Fair Work Act and that the intentions of the union are genuinely to protect the employees' interests.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established