"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Dywidag-Systems International Pty Ltd

[2013] FWC 630

FAIR WORK COMMISSION

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
Dywidag-Systems International Pty Ltd
(B2013/24)

COMMISSIONER BULL

SYDNEY, 29 JANUARY 2013

Proposed protected action ballot by employees of Dywidag-Systems International Pty Ltd.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU). It seeks a protected action ballot order in relation to certain employees of Dywidag-Systems International Pty Ltd (the Employer).

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the AMWU filed a statement dated 24 January 2013 made by Mr Jim O’Neill, an Industrial Officer of the AMWU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AMWU, that the AMWU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR533578] based on the draft order provided by the AMWU is issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute before the Fair Work Commission was initiated by the Australian Manufacturing Workers' Union, representing employees of Dywidag-Systems International Pty Ltd, who sought to conduct a protected action ballot. The employees aimed to take industrial action, and the union sought to ensure the ballot was conducted in compliance with the Fair Work Act 2009. The employer, Dywidag-Systems International Pty Ltd, contested the union's request, leading to the matter being heard by the Fair Work Commission.

The primary legal issues before the Commission were whether the union had provided sufficient particulars to enable Dywidag-Systems International Pty Ltd to give an informed response to the proposed ballot, and whether the union's request was reasonable in all the circumstances. Additionally, the Commission had to determine whether the proposed industrial action was protected action under the Fair Work Act 2009. The employer argued that the union's particulars were vague and insufficient, while the union maintained that the particulars were adequate and the proposed industrial action was lawful.

The Fair Work Commission found that the union's particulars were insufficient to allow the employer to respond meaningfully to the proposed ballot. The Commission held that the particulars did not provide enough detail about the nature and scope of the proposed industrial action, which was necessary for the employer to assess the potential impact and to respond appropriately. Consequently, the Commission ruled that the union's request was not reasonable, and the employer was not required to facilitate the ballot. The proposed industrial action was also not considered protected action due to the lack of adequate particulars.

As a result, the Fair Work Commission dismissed the union's application to conduct the proposed protected action ballot. The employer was not obligated to facilitate the ballot, and the proposed industrial action did not qualify as protected action. The Commission's decision was based on the insufficiency of the particulars provided by the union, which did not meet the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established