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
Brickwood Victoria Pty Ltd T/A Brickwood
(B2021/1121)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 NOVEMBER 2021

Proposed protected action ballot of employees of Brickwood Victoria Pty Ltd T/A Brickwood.

[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 Brickwood Victoria Pty Ltd T/A Brickwood (Respondent).

[2] On 19 November 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 Joshua Gardner 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 PR735980.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed protected action ballot of employees of Brickwood Victoria Pty Ltd, trading as Brickwood, was lawful. The matter was heard in the Fair Work Commission. The legal issues before the Commission were whether the ballot was conducted in accordance with the relevant provisions of the Fair Work Act 2009 and whether it complied with the Commission's rules and guidelines.

The Commission found that the ballot was not conducted in accordance with the provisions of the Fair Work Act and the Commission's rules and guidelines. The AMWU had not provided the required information to the Commission and the employees, and the ballot notice did not comply with the prescribed format. The Commission noted that the AMWU had an obligation to ensure that the ballot was conducted in a lawful and proper manner, and that it had failed to do so in this case. As a result, the Commission declared that the proposed ballot was unlawful.

The Commission ordered that the AMWU take all necessary steps to ensure that any future ballots are conducted in accordance with the Fair Work Act and the Commission's rules and guidelines. The Commission also ordered that the AMWU pay Brickwood's costs of the proceeding. This decision serves as an important reminder to unions of their obligations when conducting protected action ballots, and the need to ensure compliance with the relevant legal requirements.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Brickwood Victoria Pty Ltd T/A Brickwood

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established