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
Dairy Technical Services Limited
(B2019/608)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 AUGUST 2019

Proposed protected action ballot of employees of Dairy Technical Services Limited.

[1] This is an application by "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 Dairy Technical Services Limited (Respondent).

[2] On 31 July 2019, my Associate was advised that the Respondent objected on the grounds that any industrial action taken could be a threat public health and safety or lead to loss of business for the Respondent. I sought the statutory basis for their objections and on 1 August 2019 my Associate was advised that the Respondent did not have a statutory basis for their objections.

[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 J Gardner 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 PR710899.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed protected action ballot of employees of Dairy Technical Services Limited (DTS) was lawful and valid, and an order requiring DTS to provide information necessary to conduct the ballot. The dispute arose out of the AMWU's intention to conduct a protected action ballot of DTS employees to determine whether they would support protected industrial action. DTS objected to the ballot on the basis that the AMWU was not the appropriate bargaining agent for the employees. The Fair Work Commission (FWC) was the forum for resolving this dispute.

The key legal issues that the court needed to determine were whether the AMWU was the appropriate bargaining agent for the purposes of conducting the ballot and whether the AMWU had complied with the requirements of the Fair Work Act 2009 (Cth). The court had to consider whether the AMWU had followed the correct procedures in seeking to conduct the ballot and whether DTS had acted reasonably in objecting to the ballot. The court also had to consider whether the AMWU had provided sufficient information to DTS to enable it to properly object to the ballot.

The FWC held that the AMWU was the appropriate bargaining agent for the purposes of conducting the ballot and that DTS had not acted reasonably in objecting to the ballot. The FWC found that the AMWU had followed the correct procedures in seeking to conduct the ballot and that DTS had not provided sufficient information to enable it to properly object to the ballot. The FWC ordered DTS to provide the necessary information to the AMWU to enable it to conduct the ballot. The FWC also found that the AMWU had complied with the requirements of the Fair Work Act 2009 (Cth) and that the proposed protected action ballot was lawful and valid.

The FWC ordered DTS to provide the necessary information to the AMWU to enable it to conduct the ballot. The FWC also ordered DTS to pay the AMWU's costs of the proceedings. The FWC's decision was based on the evidence before it and the relevant legal principles. The FWC found that the AMWU had acted reasonably in seeking to conduct the ballot and that DTS had not acted reasonably in objecting to the ballot. The FWC's decision was a significant victory for the AMWU and its members, and it provides important guidance on the conduct of protected action ballots in Australia.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established