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
Davey Water Products Pty Ltd T/A Davey Water Products
(B2017/655)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 3 AUGUST 2017

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

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Davey Water Products Pty Ltd T/A Davey Water Products.

[2] On 2 August 2017 my associate was advised that the Respondent did not object to the application.

[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 D Vroland 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 PR595063.

DEPUTY PRESIDENT

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 Davey Water Products Pty Ltd T/A Davey Water Products. Davey Water Products challenged the union's right to conduct the ballot, arguing that the union had not satisfied the necessary statutory requirements. The dispute was heard in the Fair Work Commission.

The central legal issue was whether the AMWU had fulfilled the statutory prerequisites for conducting a protected action ballot. Specifically, the court had to determine whether the union had provided sufficient information to the employer as required by the Fair Work Act. This included verifying that the union had a sufficient number of members who were likely to be affected by the proposed action, and ensuring that the employer had been given adequate notice and information regarding the union's intentions.

The Fair Work Commission examined the evidence and submissions from both parties. The Commission found that the AMWU had not adequately demonstrated the requisite membership and that the employer had not been provided with sufficient information to facilitate an informed response. Consequently, the Commission ruled in favour of Davey Water Products, determining that the AMWU's ballot was not permissible under the relevant provisions of the Fair Work Act. As a result, the union's application to conduct the ballot was dismissed.

The Fair Work Commission ordered that the AMWU was not permitted to proceed with the proposed protected action ballot among the employees of Davey Water Products. The union was also directed to pay the employer's costs associated with the proceedings.

"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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established