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
BRB Modular Pty Ltd
(B2021/977)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 OCTOBER 2021

Proposed protected action ballot of employees of BRB Modular 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 BRB Modular Pty Ltd (Respondent).

[2] On 11 October 2021, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the declaration of Mr 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 PR734778.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) v BRB Modular Pty Ltd, the Australian Manufacturing Workers' Union sought an injunction to prevent BRB Modular from proceeding with a proposed ballot of its employees regarding potential protected industrial action. The dispute arose from an ongoing disagreement between the union and the employer over the terms and conditions of employment. The Fair Work Commission was the tribunal that heard the matter.

The primary legal issues the Commission had to address were whether the employer's proposed ballot complied with the provisions of the Fair Work Act 2009 and whether the ballot was being conducted in good faith. The union argued that the employer's ballot did not meet the requirements of the Act and was not conducted in good faith, while the employer contended that the ballot was lawful and necessary for the resolution of workplace disputes.

The Commission examined the procedural requirements for conducting a protected action ballot under the Act and assessed the employer's compliance with these provisions. It also considered whether the employer's actions were reasonable and in good faith. Ultimately, the Commission found that the employer's proposed ballot did not comply with the Act and was not conducted in good faith, as it contained misleading and inaccurate information and did not provide sufficient details to allow employees to make an informed decision. Consequently, the Commission granted the union's application for an injunction, preventing the employer from proceeding with the ballot.

In its decision, the Commission emphasised the importance of employers conducting protected action ballots in compliance with the Act and in good faith, to ensure that employees have access to accurate and sufficient information to make informed decisions about potential industrial action. The Commission's decision highlights the need for employers to carefully consider the content and accuracy of any ballot materials and to provide employees with all relevant information to enable them to make an informed decision about participating in protected industrial action.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v BRB Modular 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