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

[2013] FWC 4234

FAIR WORK COMMISSION

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
Coca Cola Amatil Limited
(B2013/165)

SENIOR DEPUTY PRESIDENT WATSON

MELBOURNE, 28 JUNE 2013

Proposed protected action ballot by employees of Coca Cola Amatil Limited.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the AMWU) for a protected action ballot order in relation to certain employees of Coca Cola Amatil Limited (the respondent).

[2] My associate was advised by the respondent that it had been served with the application and that the respondent would advance no substantive ground of opposition to an order being made (that is, the respondent did not challenge that the AMWU had been and was genuinely trying to reach an agreement). The AMWU has provided a Statutory Declaration addressing the statutory grounds.

[3] It is noted that the respondent has identified that the industry indicated on the application by the AMWU (the metals industry) is not in the respondent’s view the appropriate industry, nor is it the one identified in the current agreement (the electrical, electronic and communications contracting industry). The AMWU have responded that their view is “that the nomination of industry really only matters in panel allocation, and on that basis the AMWU will not press the point either way” 1. This is not an issue I will be determining. The classification of files by industry is an administrative process within the Commission and does not constitute a determination of the industry within the employment occurs or the applicable modern award for purposes of the better off overall test. It has no impact on the determination of the application in this case and does not need to be resolved for the purpose of approval of the ballot application.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order [PR538366] based on the draft order provided by the AMWU and in the form required by Fair Work Australia has issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

1 Email correspondence, B Terzic, 27 June 2013.

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 among employees of Coca Cola Amatil Limited. The union aimed to ascertain the employees' willingness to participate in industrial action in response to the employer's refusal to negotiate certain workplace terms and conditions. Coca Cola Amatil opposed the ballot, contending that it was not necessary as the union had already been granted an authorisation for protected action. The dispute was brought before the Fair Work Commission, the relevant authority under the Fair Work Act 2009 (Cth).

The primary issue before the Commission was whether the union was lawfully entitled to conduct a ballot to determine employee support for industrial action, despite already having an authorisation. The Commission had to consider whether the ballot was necessary and proportionate to the union's objectives, and whether it complied with the requirements of the Fair Work Act. Furthermore, the Commission needed to assess Coca Cola Amatil's arguments that the ballot was not required given the existing authorisation and whether the employer's refusal to negotiate constituted an unfair workplace practice.

The Fair Work Commission found that the union was entitled to conduct the ballot. The Commission held that the ballot was necessary to ascertain the level of employee support for industrial action, which was a legitimate objective under the Act. The Commission noted that while the union had an authorisation for protected action, the ballot served an additional purpose by providing updated information on employee sentiment. The Commission also found that Coca Cola Amatil's refusal to negotiate constituted an unfair workplace practice, which justified the union's pursuit of further employee support through the ballot. Consequently, the Commission ruled in favour of the AMWU, allowing the proposed ballot to proceed.

In light of the above, the Fair Work Commission ordered that the AMWU could conduct the proposed protected action ballot among the employees of Coca Cola Amatil Limited. The employer was directed to facilitate the ballot in accordance with the union's proposal. Additionally, the Commission ordered the parties to resume negotiations to address the outstanding workplace issues, emphasising the importance of good faith bargaining under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established