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

[2016] FWC 1141

[2016] FWC 1141

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
Elphinstone Enterprises Pty Ltd
(B2016/292)

DEPUTY PRESIDENT CLANCY MELBOURNE, 24 FEBRUARY 2016

Application for Protected Action Ballot Order by employees of Elphinstone Enterprises Pty Ltd dismissed – Application did not meet requirements under s.440.

[1] On 16 February 2016, an application pursuant to s.437 of the Fair Work Act 2009 (Cth) (the Act) was made by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU).

[2] The application sought that the Fair Work Commission (the Commission) issue a protected action ballot order for AMWU members who are employed at the Burnie wharf of Elphinstone Enterprises Pty Ltd (the Employer).

[3] The application was initially allocated to Commissioner Lee, who immediately commenced action to enable it to be determined. Email correspondence from the Commissioner’s Chambers sent to the Employer, via the email address that had been provided in the application, was returned undelivered. The AMWU was copied into this email correspondence.

[4] The correct email address was established in ensuing correspondence between the Commissioner’s Chambers and the AMWU, although the Commissioner was not provided with an email address that would result in delivery of his correspondence to the Employer until the morning of 18 February 2016.

[5] Despite the Commissioner’s attempts to expedite determination of the application in the initial and subsequent correspondence to both parties, delays in responding to his correspondence resulted in him being unable to do so prior to commencing a period of leave.

[6] The application was allocated to me on 22 February 2016 to determine. On this date, the Employer had indicated that it opposed the application.

[7] Sections 440 and 441 of the Act provide as follows:

440 Notice of application

Within 24 hours after making an application for a protected action ballot order, the applicant must give a copy of the application to the employer of the employees who are to be balloted, and:

(a) if the application specifies a person that the applicant wishes to be the protected action ballot agent—that person; or

(b) otherwise—the Australian Electoral Commission.

441 Application to be determined within 2 days after it is made

(1) The FWC must, as far as practicable, determine an application for a protected action ballot order within 2 working days after the application is made.

(2) However, the FWC must not determine the application unless it is satisfied that each applicant has complied with section 440.

[8] Mr John Short, the Tasmanian State Secretary of the AMWU, made a statutory declaration on 18 February 2016 that was filed in the Commission on the same day. In paragraph two he declared, “I am aware that the Australian Manufacturing Workers Union will serve the application for a protected action ballot order (PAB) via email on the Respondent being Elphinstone Enterprises trading as Elphinstone Enterprises.”

[9] Further, Mr Short declared in paragraph three, “I am aware that the Australian Manufacturing Workers Union will serve the application for a protected action ballot order (PABO) and draft order via email on the Australian Electoral Commission (AEC).”

[10] On 22 February 2016, I caused correspondence to be sent to Mr Short which stated it was not apparent whether the AMWU gave a copy of the application to the employer within 24 hours after making the application and that if there was evidence that the employer was given a copy of the application within 24 hours after making the application, this should be provided to the Commission by no later than noon on 23 February 2016.

[11] On 23 February 2016, Mr Michael Wickham, State Organiser at the AMWU, advised the Commission via email correspondence that “[i]t is without doubt, talking to our Office Secretary, that the submission to the employer would have exceeded the 24 hour requirement due to the email address issue.”

[12] As the AMWU has not complied with s.440 of the Act, the application is dismissed.

DEPUTY PRESIDENT

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