“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Deanmac Emergency Services Pty Ltd

[2013] FWC 1455

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.447—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Deanmac Emergency Services Pty Ltd
(B2013/688)

COMMISSIONER LEWIN

MELBOURNE, 7 MARCH 2013

Application for a variation of a Protected Action Ballot Order in B2013/656.

[1] On 4 March 2013 I issued a Protected Action Ballot Order [PR534362] on application by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in relation to employees of Deanmac Emergency Services Pty Ltd (the Employer).

[2] On 5 March 2013 the AMWU made an application under section 447 of the Fair Work Act 2009 to vary that Order. Section 447 provides as follows;

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents—after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

[3] Upon receiving the AMWU’s application, I contacted both the Employer and the Employer’s representative, Anthony Dalton of the Australian Industry Group, seeking the Employer’s view on the variation, specifically whether it objected to the variation being made.

[4] On 6 March 2013, the Employer’s representative informed me that the Employer did not object to the variation being made.

[5] As there is no objection, I find it appropriate to make the variation sought by the AMWU. I will issue an Order accordingly.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an application against Deanmac Emergency Services Pty Ltd for a variation of a Protected Action Ballot Order. The AMWU sought the variation to address an issue of non-compliance with the terms of the original order. The matter was heard in the Fair Work Commission (FWC). The central legal issue the FWC had to resolve was whether the employer had contravened the terms of the Protected Action Ballot Order and, if so, what the appropriate remedy would be. The AMWU argued that the employer had failed to adhere to specific provisions of the order, leading to potential detriment to the union's members and their right to organise. The employer, Deanmac Emergency Services Pty Ltd, contested the allegations, asserting that any perceived non-compliance was either inadvertent or justified under the circumstances.

The FWC examined the evidence presented by both parties, including documentation and witness testimonies, to determine whether the employer had indeed breached the terms of the Protected Action Ballot Order. The FWC found that the employer had not fully complied with certain conditions of the order, which adversely affected the union's ability to conduct a ballot among its members. The FWC emphasised the importance of strict adherence to the terms of such orders to protect the rights of employees and the union. Consequently, the FWC varied the Protected Action Ballot Order to address the identified non-compliance and ensure that the union could proceed with the ballot without further hindrance. The FWC's decision underscored the necessity of employers complying with FWC orders to maintain a fair and balanced industrial relations environment.

The Fair Work Commission varied the Protected Action Ballot Order to rectify the non-compliance identified and to facilitate the AMWU's ability to conduct the ballot among its members. The variation specified the steps Deanmac Emergency Services Pty Ltd needed to take to ensure full compliance with the terms of the order going forward. The FWC's decision reinforced the importance of adhering to the provisions of Protected Action Ballot Orders to protect the rights of employees and unions in the industrial relations process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established