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

[2022] FWC 2307

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

DMH Plant Services Pty Ltd

(B2022/1293)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 AUGUST 2022

Proposed protected action ballot of employees of DMH Plant Services Pty Ltd

This is an application by the “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 (Cth) (Act) for a protected action ballot order in relation to certain employees of DMH Plant Services Pty Ltd (Respondent).

On 30 August 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Philip Andrew Golby of the Applicant declared on 25 August 2022, 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.

An Order has been separately issued in PR745320.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) applied to the Fair Work Commission for an order allowing a ballot of its members employed by DMH Plant Services Pty Ltd. The application was made under section 437 of the Fair Work Act 2009, which provides for protected action ballots in certain circumstances. The AMWU argued that it had been genuinely attempting to negotiate an agreement with the employer but had been unable to reach one, and that a notification period had been given as required by section 443(1) of the Act. DMH Plant Services Pty Ltd did not oppose the application.

The central legal issue before the Vice President was whether the AMWU had satisfied the statutory requirements to hold a protected action ballot. This required the Vice President to determine if the AMWU had genuinely been attempting to reach agreement with the employer, if a notification period had been given, and if the other conditions of section 437 of the Act were met. The Vice President examined the material before them, including a statutory declaration from the AMWU, to make this determination.

After reviewing the evidence, the Vice President found that the AMWU had satisfied the statutory requirements for a protected action ballot. The Vice President was satisfied that the AMWU had genuinely been attempting to negotiate an agreement with the employer, that a notification period had been given, and that the other conditions of section 437 of the Act had been met. The Vice President therefore issued an order allowing the AMWU to proceed with the ballot of its members employed by DMH Plant Services Pty Ltd.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established