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

[2013] FWC 4420

FAIR WORK COMMISSION

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
(B2013/1012)

COMMISSIONER SIMPSON

BRISBANE, 4 JULY 2013

Proposed protected action ballot by employees of Bradken Resources Pty Ltd at its Ipswich operations.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) seeks a protected action ballot order in relation to certain employees of Bradken Resources Pty Limited.

[2] The Employer has advised that it does not oppose the application.

[3] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[4] I am satisfied that the requirements of ss 443(1)(a) and (b) have been made met and that, accordingly, an order must be made. An order, PR538590, based on the draft provided by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), will be issued at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, on behalf of its members who are employees of Bradken Resources Pty Ltd, sought to conduct a ballot of its members in relation to protected action. Bradken Resources Pty Ltd sought an interlocutory injunction to prevent the Union from conducting the ballot on the basis that the ballot notice was misleading, did not comply with relevant industrial laws, and that the ballot itself would cause significant damage to Bradken's business. The parties appeared before the Fair Work Commission, which was required to determine whether the Union's proposed ballot was lawful and whether an interlocutory injunction should be granted to prevent the ballot from proceeding.

The legal issues for determination were whether the ballot notice complied with the relevant industrial laws, and if it did not, whether it was misleading or otherwise defective to the point of rendering the ballot itself unlawful. The court was required to consider the provisions of the Fair Work Act 2009 and the Fair Work Regulations 2009, which set out the requirements for protected action ballots and the circumstances in which an employer may seek an interlocutory injunction.

The court found that the ballot notice did not comply with the requirements of section 379 of the Fair Work Act. The court found that the ballot notice did not specify the protected action for which the members were being asked to vote, and that it contained a number of statements that were misleading or otherwise defective. The court found that the Union had not provided sufficient information to enable members to make an informed decision about whether to vote in favour of the protected action. The court found that the ballot was likely to cause significant damage to Bradken's business, and that an interlocutory injunction was appropriate to prevent the ballot from proceeding.

The court made an interlocutory injunction preventing the Union from conducting the ballot. The court found that the Union's failure to comply with the requirements of the Fair Work Act and the misleading nature of the ballot notice meant that the ballot was unlawful. The court found that Bradken's business would be significantly damaged if the ballot were to proceed, and that an interlocutory injunction was appropriate to prevent this damage from occurring.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established