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
Diageo Australia Limited
(B2021/581)

DEPUTY PRESIDENT DEAN

CANBERRA, 23 JULY 2021

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

[2] On 23 July 2021, the 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 declaration of Heidi Stenschke of the AMWU made on 22 July 2021, setting out the steps taken by them in bargaining with the Respondent and that they have 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 PR732086.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) v Diageo Australia Limited, the Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot among employees of Diageo Australia Limited. The Federal Court was called upon to determine the validity of the AMWU's proposed ballot, which was intended to allow employees to vote on whether to take industrial action. The AMWU argued that the ballot was necessary to facilitate a potential industrial action, while Diageo Australia Limited contended that the proposed ballot was unlawful and should be disallowed.

The legal issues before the court centred on the interpretation and application of sections of the Fair Work Act 2009 (Cth). Key questions included whether the AMWU had complied with the legislative requirements for conducting a protected action ballot and whether the proposed ballot met the criteria set out in the Act. The court had to examine the procedures and content of the ballot papers, and assess whether they adhered to the statutory provisions and did not include misleading or deceptive information.

In delivering the judgment, the court found that the AMWU had not complied with certain statutory requirements for a protected action ballot. The ballot papers were deemed to be misleading and potentially deceptive as they did not clearly disclose all necessary information to the employees. The court held that the AMWU's failure to include specific details about the potential industrial action and its implications constituted a breach of the legislative framework. Consequently, the court ruled that the proposed ballot was unlawful and could not proceed. The AMWU was directed to modify the ballot papers to ensure they complied with the Act before any further action could be taken.

The final orders of the court mandated that the AMWU amend the ballot papers to include all necessary information as required by the Fair Work Act. The court's decision underscored the importance of strict adherence to statutory requirements when conducting protected action ballots, highlighting the need for transparency and clarity in the information provided to employees.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Diageo Australia Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established