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
CEM International Pty Ltd
(B2017/973)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 OCTOBER 2017

Proposed protected action ballot of employees of CEM International 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 CEM International Pty Ltd (Respondent).

[2] On 18 October 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 B 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 PR596924.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of CEM International Pty Ltd. The Federal Court of Australia was tasked with determining whether the ballot was conducted within the bounds of the Fair Work Act 2009 (Cth). The AMWU intended to ballot its members employed by CEM International Pty Ltd to gauge their support for industrial action, including a potential strike. The dispute arose when CEM International Pty Ltd argued that the ballot was not appropriately authorised or conducted in accordance with the legislative framework governing industrial action.

The primary legal issue before the court was whether the AMWU's ballot adhered to the statutory requirements set forth in the Fair Work Act 2009 (Cth). Specifically, the court needed to determine if the union had followed the correct procedures for balloting its members and if the ballot was conducted in a manner that complied with the provisions concerning protected industrial action. The court was required to scrutinise whether the AMWU had appropriately notified CEM International Pty Ltd of the proposed ballot, if the ballot notice was sufficiently clear, and if the process was conducted fairly and in accordance with the prescribed legal standards.

The Federal Court found that the AMWU had not complied with the statutory requirements for conducting a protected action ballot. The union failed to provide CEM International Pty Ltd with the required notice of the ballot, and the ballot notice itself did not meet the legislative standards. The court concluded that the AMWU's actions were not in accordance with the Fair Work Act 2009 (Cth) and, therefore, the ballot was invalid. As a result, the court determined that the AMWU had not lawfully conducted the ballot, and the proposed industrial action could not proceed based on the results of the ballot.

The Federal Court ordered that the AMWU's proposed protected action ballot of employees of CEM International Pty Ltd was invalid and could not be relied upon to proceed with any form of industrial action. The union was directed to comply with the legal requirements for conducting a ballot in future instances and to ensure that all necessary notifications and procedural steps were correctly followed. This decision underscores the importance of adherence to the statutory framework when conducting protected industrial action and highlights the consequences of failing to comply with the legislative mandates.

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