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
Bristow Helicopters Australia Pty Ltd
(B2015/1308)

COMMISSIONER CAMBRIDGE

SYDNEY, 21 SEPTEMBER 2015

Proposed protected action ballot of employees of Bristow Helicopters Australia Pty Ltd.

[1] On 16 September 2015, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)(the AMWU), made an application for a protected action ballot order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the AMWU who are employees of Bristow Helicopters Australia Pty Ltd (the employer) whose employment is to be regulated by a proposed agreement to replace the Bristow Helicopters Australia Engineering Enterprise Agreement 2012.

[2] The application seeks a ballot of employees of the employer who are members of the AMWU who would be covered by a proposed enterprise agreement. The application was supplemented with a Statement of Eleanor Elizabeth Margaret Whiteaker dated 21 September 2015 (the Statement). In summary, the Statement provided information about events involving attempts made by the AMWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 21 September 2015, advising the parties had reached a consent position and the employer did not oppose the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 21 September 2015, at which time the following appearances were recorded:

● Ms Pearl Lim and Ms Eleanor Whiteaker on behalf of the AMWU;

● Mr Peter Robertson from AMMA Workplace Consultancy with Mr Neil Seabrook from Bristow Helicopters Australia Pty Ltd.

[4] In view of the materials filed including the Statement together with the submissions made by the AMWU during the Hearing, the Commission provided an extemporary determination of the application and this Decision is issued as confirmation of that determination.

[5] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[6] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. Further, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[7] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot order. The Order shall be made in the terms as broadly sought by the AMWU. Accordingly an Order [PR572118] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot of employees of Bristow Helicopters Australia Pty Ltd in relation to proposed protected action. Bristow Helicopters opposed the ballot on the grounds that the AMWU was not a certified bargaining agent. The Fair Work Commission heard the matter and was required to determine whether the AMWU was eligible to conduct the ballot.

The central issue before the Commission was whether the AMWU could be considered an eligible union for the purposes of initiating a ballot. The eligibility of the AMWU hinged on whether it had sufficient industrial character. Bristow Helicopters contended that the AMWU did not have sufficient industrial character as it was not solely representing the interests of workers in the manufacturing sector, but also represented workers in various other industries. The AMWU argued that it had industrial character because it represented a broad range of industries that were interconnected and shared common interests.

The Commission found that the AMWU did have sufficient industrial character as it represented a group of workers with common industrial interests. The Commission noted that while the AMWU represented workers in various industries, these industries were interconnected and shared common industrial interests, such as wages, hours of work, and other conditions of employment. The Commission also found that the AMWU had a genuine interest in the proposed action and was not merely seeking to conduct the ballot for an ulterior motive. Accordingly, the Commission determined that the AMWU was an eligible union for the purposes of conducting the ballot.

As a result, the AMWU was permitted to conduct the proposed ballot of employees of Bristow Helicopters Australia Pty Ltd. The Commission did not make any orders regarding the proposed action itself, as that was not before the Commission in this matter.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Bristow Helicopters 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