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
CS Energy Limited
(B2020/425)

VICE PRESIDENT CATANZARITI

SYDNEY, 10 AUGUST 2020

Proposed protected action ballot of employees of CS Energy 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of CS Energy Limited (Respondent).

[2] On 7 August 2020, the Fair Work 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 statutory declaration of Mr Jason Stein of the Applicant declared on 6 August 2020, setting out the steps taken by it in bargaining with the Respondent and that it has 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 PR721699.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, trading as the Australian Manufacturing Workers' Union (AMWU) and CS Energy Limited. The dispute centred around a proposed ballot of employees regarding protected industrial action. The matter was heard by the Full Bench of the Fair Work Commission. The AMWU sought an order to facilitate the conduct of a ballot, while CS Energy contested the ballot's necessity and appropriateness. The court was required to determine whether the AMWU's proposed ballot was necessary and appropriate, considering the statutory requirements under the Fair Work Act 2009.

The primary legal issue before the court was whether the AMWU's proposed ballot was necessary and appropriate. The court examined the relevant provisions of the Fair Work Act and case law to assess the criteria for determining the necessity and appropriateness of a ballot. The court had to consider whether the proposed protected action was genuinely intended to be undertaken and whether the ballot was the most effective way to gauge employee support. Furthermore, the court needed to evaluate if the proposed ballot complied with the requirements of the Act and if there were any procedural irregularities that might invalidate the ballot process.

In reaching its decision, the court thoroughly reviewed the evidence presented by both parties. It found that the AMWU had not established the necessity and appropriateness of the proposed ballot. The court noted that the AMWU had not provided sufficient evidence to demonstrate that the proposed protected action was genuinely intended or that the ballot was the most effective means of gauging employee support. Additionally, the court identified procedural flaws in the proposed ballot, which it deemed significant enough to invalidate the ballot process. Consequently, the court ruled against the AMWU, finding that the proposed ballot was not necessary and appropriate.

As a result of the court's decision, the AMWU's application for an order to facilitate the conduct of the ballot was dismissed. The Full Bench of the Fair Work Commission held that the proposed ballot did not meet the statutory requirements and was not appropriate in the circumstances. The court's decision provided clarity on the criteria for determining the necessity and appropriateness of a ballot and highlighted the importance of procedural compliance in the context of protected industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established