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
(B2018/1092)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 NOVEMBER 2018

Proposed protected action ballot of employees of BOC 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) (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 (Respondent).

[2] On 26 November 2018, my Associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr M Nicolaides 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 PR702662.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that it could lawfully conduct a protected action ballot among employees of BOC Limited. BOC Limited opposed the application, arguing that the ballot was not related to any existing industrial dispute and therefore fell outside the scope of lawful protected action. The dispute came before the Fair Work Commission.

The legal issue was whether the AMWU's proposed ballot was protected action under the Fair Work Act 2009. This required the Commission to determine whether the ballot was related to an existing industrial dispute, and if the proposed action was protected under the Act. The AMWU argued that the ballot was related to an existing industrial dispute concerning redundancies and the distribution of work, while BOC Limited contended that the ballot was not related to any existing dispute and was, therefore, unprotected.

The Commission found that the proposed ballot was related to an existing industrial dispute concerning the distribution of work and redundancies. The ballot was therefore protected action under the Act. The Commission rejected BOC Limited's argument that the ballot was not related to any existing dispute. The Commission held that the AMWU's proposed ballot was a legitimate exercise of the right to conduct protected action in pursuit of a genuine industrial claim.

The AMWU's application was successful, and the Commission declared that the proposed ballot was protected action. The Commission found that the AMWU had the right to conduct the ballot among BOC Limited employees, and BOC Limited was bound by the provisions of the Act concerning protected action.

“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