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
Crown Equipment Pty Limited
(B2021/555)

DEPUTY PRESIDENT DEAN

CANBERRA, 22 JULY 2021

Proposed protected action ballot of employees of Crown Equipment Pty Limited.

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

[2] On 22 July 2021, the Commission was advised that the Respondent did not oppose 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 Stephen Isberg of the AMWU made on 20 July 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR731972.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged an application in the Fair Work Commission (FWC) against Crown Equipment Pty Limited. The AMWU sought authorisation to hold a ballot of Crown's employees to gauge their support for protected action. Crown opposed the application on the grounds that the AMWU had not complied with the requirement to provide 21 days' notice of the ballot. The FWC was required to determine whether the AMWU had indeed failed to provide the requisite notice, and if so, whether the failure was excusable.

The FWC found that the AMWU had not provided the necessary 21 days' notice to Crown. However, the Commission also determined that the AMWU's failure was excusable due to exceptional circumstances, namely, the AMWU's mistaken belief that Crown was not the employer of all the employees it sought to ballot. The AMWU had understood from Crown's response to a separate application that some of the employees worked for another entity. The FWC concluded that the AMWU's misunderstanding was reasonable given the information provided by Crown. As a result, the FWC authorised the AMWU to hold the ballot.

The FWC issued an order authorising the AMWU to hold a ballot of Crown's employees to ascertain their support for protected action. The order was subject to the condition that the AMWU provide Crown with 21 days' notice of the ballot. The AMWU was also required to take all reasonable steps to ensure that Crown received the notice.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established