“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Davey Water Products Pty Ltd T/A Davey Water Products

[2014] FWC 7795

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
Davey Water Products Pty Ltd T/A Davey Water Products
(B2014/1534)

COMMISSIONER RYAN

MELBOURNE, 31 OCTOBER 2014

Proposed protected action ballot of employees of Davey Water Products Pty Ltd.

[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) for a protected action ballot order in relation to employees of Davey Water Products Pty Ltd (the Respondent).

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AMWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by Barry Terzic, an Official of the AMWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union (AMWU) versus Davey Water Products Pty Ltd T/A Davey Water Products, the Fair Work Commission (FWC) was tasked with determining whether the AMWU was entitled to conduct a protected action ballot among the employees of Davey Water Products Pty Ltd. This dispute arose when the AMWU, a trade union representing the employees, sought to organise a ballot to facilitate potential protected action in the form of industrial action. Davey Water Products Pty Ltd, the employer, contested the union's right to conduct the ballot, arguing that the union had not properly notified them of the proposed ballot in accordance with the Fair Work Act 2009.

The primary legal issue before the FWC was whether the AMWU had complied with the notification requirements set out in the Fair Work Act. Specifically, the court had to determine if the union's notification was adequate in terms of content and timeliness, and if the notice provided by the union was sufficient to enable the employer to respond effectively. The union argued that it had fulfilled its obligations, while the employer contended that the notice was inadequate and did not meet the statutory requirements.

The FWC examined the statutory provisions and the evidence presented by both parties. The Commission found that the AMWU's notification did not comply with the specific requirements outlined in the Fair Work Act. The notice was deemed to be deficient as it did not contain all the necessary information required by the legislation, nor did it provide the employer with sufficient time to respond. As a result, the FWC ruled that the AMWU was not entitled to conduct the proposed protected action ballot. The Commission emphasised the importance of strict compliance with the notification provisions to ensure that employers have adequate opportunity to respond and to prevent any potential unfair advantage to the union.

The final order of the FWC was that the AMWU's proposed ballot for protected action was not to proceed, given the union's failure to properly notify the employer in accordance with the statutory requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established