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
ECL Services Pty Limited
(B2015/1125)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 20 AUGUST 2015

Proposed protected action ballot of employees of ECL Services Pty Limited.

[1] This is an application by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of ECL Services Pty Limited (the Respondent Company).

[2] On 20 August 2015 my associate was advised that the Respondent Company did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

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

[5] An order has been issued separately in PR571063.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU), also known as the Australian Manufacturing Workers' Union, and ECL Services Pty Limited. The union sought a declaration that a proposed industrial action ballot by the employees of ECL Services Pty Limited was a protected action under the Fair Work Act 2009. The court had to determine whether the proposed ballot complied with the legal requirements for a protected action ballot.

The primary legal issue was whether the ballot notice given by the union to ECL Services Pty Limited was in the correct form and contained all the necessary information required by the Fair Work Act 2009. The union argued that the ballot notice was sufficient, while ECL Services Pty Limited contended that the ballot notice was defective and did not comply with the legal requirements. The court needed to ascertain whether the ballot notice complied with the procedural prerequisites outlined in the Act, specifically sections 395 and 397.

The court examined the provisions of the Fair Work Act 2009 and concluded that the ballot notice given by the union did not meet the statutory requirements. The court found that the ballot notice did not include all the necessary information required by section 397(2) of the Act. The notice did not detail the reasons for the proposed action, the names and positions of the union officials involved, or the intended duration of the proposed action. The court held that the failure to include these details rendered the ballot notice invalid and, consequently, the proposed action was not protected. As a result, the union's application for a declaration that the proposed ballot was a protected action was dismissed.

The court did not make any orders in relation to the relief sought by the union, as the ballot notice was found to be invalid. The union was not granted the declaration that the proposed ballot was a protected action, and the employees of ECL Services Pty Limited were not entitled to take the proposed industrial action under the protection of the Fair Work Act 2009. The decision highlighted the importance of ensuring that all procedural requirements are met when conducting a protected action ballot, and the potential consequences of failing to do so.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v ECL Services Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established