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 Ltd T/A Bradken
(B2016/830)

COMMISSIONER HUNT

BRISBANE, 1 AUGUST 2016

Proposed protected action ballot of employees of Bradken Resources Pty Ltd.

[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 AMWU seeks a protected action ballot order in relation to certain employees of Bradken Resources Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 4:00pm on Friday, 29 July 2016, the Commission would consider that the Respondent does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] 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.

[5] The AMWU has filed an affidavit of Mr Steve Franklin, State Organiser for the AMWU, in support of the application. Mr Franklin is the Branch Official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR583597] based largely on the draft provided by the AMWU will issue at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The matter before the Fair Work Commission (FWC) involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union (AMWU), and Bradken Resources Pty Ltd T/A Bradken. The union sought to conduct a protected action ballot to determine if its members were in favour of taking protected industrial action. Bradken opposed the ballot, primarily arguing that the ballot did not comply with the requirements under the Fair Work Act 2009. The FWC was tasked with deciding whether the ballot complied with the necessary legal standards and if the union could proceed with the ballot.

The primary legal issue before the FWC was whether the ballot notice issued by the AMWU complied with the provisions of the Fair Work Act, specifically section 395. The union argued that the ballot notice was sufficient, while Bradken contended that the notice did not adequately inform the employees of the specific protected action being proposed. The FWC had to interpret the requirements of the Act and determine whether the ballot notice met the statutory criteria. The court also needed to consider the union's obligation to provide clear and concise information to its members about the proposed action.

The FWC found that the ballot notice did not sufficiently inform the employees of the specific industrial action being proposed, thus failing to meet the requirements under the Fair Work Act. The ballot notice provided by the AMWU was deemed inadequate as it did not clearly specify the nature and extent of the proposed protected action. As a result, the FWC ruled that the union could not proceed with the ballot. The FWC's decision hinged on the interpretation of the statutory requirements and the need for clarity in communicating the proposed action to the employees.

The FWC ordered that the proposed protected action ballot be abandoned, as the ballot notice did not comply with the legal requirements. The union was required to provide a new ballot notice that accurately and clearly outlined the proposed industrial action. This decision reinforced the importance of compliance with statutory requirements for conducting protected action ballots under the Fair Work Act.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Bradken Resources Pty Ltd T/A Bradken

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established