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
Brand Energy and Infrastructure Services Australia Pty Ltd
(B2018/964)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 25 OCTOBER 2018

Proposed protected action ballot of employees of Brand Energy and Infrastructure Services Australia Pty Ltd.

[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 Brand Energy and Infrastructure Services Australia Pty Ltd (Respondent).

[2] On 25 October 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 F Effie 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 PR701731.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, acting on behalf of employees of Brand Energy and Infrastructure Services Australia Pty Ltd, brought proceedings in the Fair Work Commission against its employer. The dispute centred around the employer's refusal to conduct a ballot of its employees regarding potential protected industrial action. The Fair Work Commission was tasked with resolving this issue under the Fair Work Act 2009. The union argued that the employer's refusal to facilitate the ballot was unlawful and sought an order compelling the employer to allow the ballot to proceed. The employer, on the other hand, contended that the union's proposed ballot did not comply with the necessary legal requirements and thus, the employer had no obligation to conduct it.

The legal issues before the Commission were whether the union's ballot proposal was in compliance with the statutory requirements and whether the employer was legally obligated to facilitate the ballot. The Commission had to interpret and apply the relevant sections of the Fair Work Act, particularly those dealing with the process for protected industrial action and the obligations of employers in facilitating such actions. The central question was whether the union's proposed ballot met the criteria set out in the Act, and if the employer's refusal to conduct the ballot was justified. The Commission also needed to consider the implications of any non-compliance on the rights of the employees and the union.

In its decision, the Fair Work Commission found that the union's ballot proposal did not meet the legal requirements for protected action under the Fair Work Act. The Commission determined that the union had failed to provide sufficient information to the employer and to the employees, which was necessary for a valid ballot. Consequently, the employer was not legally required to facilitate the ballot as proposed. The Commission emphasised the importance of procedural compliance in ensuring that all parties' rights and obligations were properly respected. The union's application was dismissed on the basis that the proposed ballot did not comply with the statutory requirements.

The Fair Work Commission made no order compelling the employer to conduct the ballot as proposed by the union. The decision underscored the importance of adherence to legal procedures in relation to industrial action, protecting both the rights of employees and employers. The Commission's ruling clarified the obligations of employers in relation to facilitating ballots for protected action, highlighting the need for compliance with statutory requirements.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Brand Energy and Infrastructure Services Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established