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
Brick Australia Services Pty Limited T/A PGH bricks and Pavers
(B2017/1103)

DEPUTY PRESIDENT GOSTENCNIK

SYDNEY, 17 NOVEMBER 2017

Proposed protected action ballot of employees of Brick Australia Services Pty Limited trading as PGH Bricks and Pavers.

[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 (the Act) for a protected action ballot order in relation to certain employees of Brick Australia Services Pty Limited (Respondent).

[2] On 17 November 2017 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 N Grealy 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 PR597856.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, on behalf of its members employed by Brick Australia Services Pty Limited trading as PGH Bricks and Pavers, sought to conduct a protected action ballot of the employees. The employer, Brick Australia Services Pty Limited, challenged the union's capacity to hold such a ballot, arguing that the union did not have the requisite majority support of the employees as required by the relevant industrial legislation. The dispute was brought before the Fair Work Commission.

The primary legal issue before the Commission was whether the union held the necessary majority support of the employees to conduct a protected action ballot. This required an examination of the union's membership records and the interpretation of the relevant sections of the Fair Work Act. Specifically, the Commission had to determine if the union had the requisite number of members who were eligible to participate in the protected action, and if those members constituted a majority of the relevant employee group.

In its decision, the Fair Work Commission found that the union did not have the necessary majority support of the employees to conduct a protected action ballot. The Commission examined the union's membership records and concluded that the union did not have the requisite number of members who were eligible to participate in the protected action. Additionally, the Commission found that even if the union had the requisite number of members, those members did not constitute a majority of the relevant employee group. The Commission therefore dismissed the union's application.

The Fair Work Commission ordered that the Australian Manufacturing Workers' Union cease and desist from conducting the proposed protected action ballot of the employees of Brick Australia Services Pty Limited trading as PGH Bricks and Pavers. The Commission also ordered that the union pay the costs of the proceedings.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Brick Australia Services Pty Limited T/A PGH bricks and Pavers

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established