DECISION

Fair Work Act 2009
s.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
Bradken Resources Pty Limited
(B2019/439)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 5 JUNE 2019

Proposed protected action ballot of employees of Bradken Resources Pty 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 Bradken Resources Pty Limited (Respondent).

[2] On 5 June 2019, 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 Barry Terzic 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.

[5] An order has been separately issued in PR709030.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of Bradken Resources Pty Limited. The ballot was in relation to potential industrial action over proposed changes to employees' pay and conditions. The matter was heard in the Fair Work Commission (FWC). The central legal issue before the Commission was whether Bradken was required to facilitate the AMWU's proposed ballot. Bradken argued that the ballot notice was defective and that the proposed action was not protected action. The AMWU contended that the ballot notice was valid and that the proposed action was protected action under the Fair Work Act 2009 (Cth).

The FWC determined that the ballot notice was defective as it did not provide sufficient details to enable Bradken to determine what action the employees intended to take. The notice did not specify the nature, scope, or duration of the proposed action, nor did it identify the particular terms and conditions to which the action related. The FWC held that a ballot notice must provide sufficient information to allow the employer to respond appropriately and to enable employees to make an informed decision about whether to support the proposed action. The FWC found that the ballot notice did not meet this requirement and was therefore invalid. As a result, Bradken was not required to facilitate the ballot.

The FWC further found that even if the ballot notice had been valid, the proposed action would not have been protected action. The proposed action related to changes to pay and conditions that were not covered by an existing registered agreement. The FWC held that the proposed action was not protected action because it did not relate to the terms and conditions of employment specified in a registered agreement. Accordingly, Bradken was not required to facilitate the ballot even if it had been valid. The FWC dismissed the AMWU's application.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established