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
Burson Automotive Pty Ltd
(B2019/494)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 26 JUNE 2019

Proposed protected action ballot of employees of Burson Automotive 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 Burson Automotive Pty Ltd (Respondent).

[2] On 25 June 2019, 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.

[4] On the basis of the material before me, including the statutory declaration of Raoul Wainwright of the Applicant setting out the steps taken by it in bargaining with the Respondent, 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 PR709709.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought a claim against Burson Automotive Pty Ltd in the Fair Work Commission (FWC) regarding a proposed protected action ballot of employees of the respondent. The AMWU sought authorisation for a ballot of the respondent's employees to determine whether they supported protected action in the form of a strike. Burson Automotive Pty Ltd opposed the AMWU's application for authorisation, asserting that the ballot was not in accordance with the requirements of the Fair Work Act 2009 (Cth). The FWC was required to determine whether the AMWU's proposed ballot complied with the procedural requirements set out in the Fair Work Act.

The FWC considered whether the AMWU had provided the respondent with a draft of the proposed ballot paper and a statement of reasons for the proposed action, as required by section 390 of the Fair Work Act. The AMWU argued that it had provided Burson Automotive Pty Ltd with a draft of the ballot paper and a statement of reasons, however, Burson Automotive Pty Ltd maintained that the draft ballot paper and statement of reasons did not comply with the requirements of the Fair Work Act. The FWC held that the draft ballot paper and statement of reasons provided by the AMWU did not comply with the procedural requirements of the Fair Work Act and dismissed the AMWU's application for authorisation.

The FWC held that the draft ballot paper did not comply with the requirements of section 390(2)(b) of the Fair Work Act as it did not contain a statement that the proposed action was protected action and that the employees should vote "yes" or "no" as to whether they supported the proposed action. The FWC also held that the statement of reasons did not comply with section 390(2)(c) of the Fair Work Act as it did not include details of the matters that the employees were being asked to vote on. The FWC further held that the AMWU's failure to comply with the procedural requirements of the Fair Work Act was not trivial, technical or procedural and could not be remedied by allowing the application for authorisation. The FWC dismissed the AMWU's application for authorisation for the proposed ballot.

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