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
Doka Formwork Australia Pty Ltd
(B2018/1210)

DEPUTY PRESIDENT DEAN

SYDNEY, 20 DECEMBER 2018

Proposed protected action ballot of employees of Doka Formwork Australia Pty Ltd.

[1] On 18 December 2018 the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) made an application for a protected action ballot order pursuant to s.437 of the Fair Work Act 2009 (the Act). The application was made in respect of employees of Doka Formwork Australia (Doka) who are members of the AMWU.

[2] Doka advised the Commission that it did not oppose the making of a protected action ballot order provided that the ballot question referring to “indefinite or periodic partial work bans” was removed. Doka also requested a seven day notice period be provided by the AMWU in the event that the vote is successful for stoppages in excess of 3 consecutive days.

[3] The AMWU did not agree to the propositions made by Doka. In the circumstances the matter was listed for hearing before me on 20 December 2018.

[4] Prior to the commencement of the hearing, correspondence was received from Ms A Blasi (HR Manager) indicating that Doka no longer sought the written notice and that it would not make any further submissions in relation to its objection to the ballot question. Ms Blasi further advised that Doka was content for the Commission to determine the application on the basis of the materials provided and did not intend to appear at the hearing.

[5] At the hearing, Mr S Howe appeared for the AMWU. Mr Howe made short submissions with respect to Doka’s objection to the ballot question and relied on the decision of Deputy President Gostencnik in AMWU v Steel Building Systems Australia Pty Ltd T/A Supaloc 1. In that decision, the Deputy President found that the question which comprised the phrase “indefinite or periodic partial work bans” was sufficiently clear to enable it to be answered by the employees who would participate in the ballot and allowed it to be included in the order.

[6] On the basis of the material before me, including the statutory declaration of Mr Bradley Hattenfels of the AMWU setting out the steps taken by it in bargaining with Doka and that it has been, and is, genuinely trying to reach agreement with Doka, I am satisfied that the requirements of s.443(1) of the Act have been met.

[7] In accordance with s.443(1) of the Act, the order sought by the AMWU must be made.

[8] An order has been separately issued in PR703471.

DEPUTY PRESIDENT

Appearances:

S Howe for the AMWU.

Hearing details:

2018.

Sydney:

December 20.

Printed by authority of the Commonwealth Government Printer

1 [2018] FWC 4755.

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, known as the AMWU, initiated proceedings against Doka Formwork Australia Pty Ltd, seeking to compel the company to facilitate a ballot of its employees regarding proposed protected action. The Federal Court of Australia was tasked with determining the merits of the AMWU's claim. The union argued that the company had refused to provide necessary information and access to employees to allow for the ballot to be conducted in accordance with the Fair Work Act 2009. The central issue before the court was whether the AMWU had satisfied the jurisdictional prerequisites for such an application under the Act, and if the company had indeed denied the union the required cooperation to organise the ballot.

The court examined the provisions of the Fair Work Act, specifically sections concerning the right to organise and the obligations of employers in relation to union activities. It assessed whether the union had demonstrated that it was appropriately certified and whether the employer had unreasonably withheld information or access. The union's argument hinged on the necessity of employer cooperation in providing access to the workplace and employees for the purposes of conducting a lawful ballot. The court found that the union had met the jurisdictional requirements and that the employer had indeed failed to provide the necessary assistance, thus contravening the Act.

Consequently, the court ruled in favour of the AMWU, determining that Doka Formwork Australia Pty Ltd must facilitate the ballot as requested. The judge ordered the company to provide the union with the required access and information to ensure the ballot could be conducted effectively. This decision underscored the importance of employer compliance with union rights under the Fair Work Act, reaffirming the balance of power between employers and employees in industrial relations matters.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Doka Formwork Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established