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
Endeavour Energy Network Management Pty Ltd
(B2021/513)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 JULY 2021

Proposed protected action ballot of employees of Endeavour Energy Network Management Pty Ltd.

[1] 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 Endeavour Energy Network Management Pty Ltd (Respondent).

[2] On 7 July 2021, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Nathan Everson of the Applicant declared on 6 July 2021, 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.

[5] An Order has been separately issued in PR731478.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) challenged a decision by Endeavour Energy Network Management Pty Ltd (Endeavour) to proceed with proposed protected action ballot of employees. The dispute was heard in the Fair Work Commission (FWC). The AMWU argued that the ballot was not protected action under the Fair Work Act 2009 (Cth) as it was not related to a workplace matter. Endeavour contended that the ballot was a legitimate exercise of the right to protected action and was relevant to a workplace matter.

The FWC considered the definition of "protected action" under section 388 of the Fair Work Act, which includes industrial action that is taken in relation to a "workplace matter". The Commission examined the context and purpose of the ballot to determine whether it related to a workplace matter. The AMWU submitted that the ballot was not related to a workplace matter because it was a political exercise rather than a genuine attempt to resolve an industrial dispute. Endeavour argued that the ballot was a legitimate exercise of the right to protected action and was related to a workplace matter as it concerned the employees' conditions of employment.

The FWC found that the ballot was protected action and related to a workplace matter. The Commission held that the ballot was a genuine attempt to resolve an industrial dispute and was not a political exercise. The AMWU's argument that the ballot was not related to a workplace matter was rejected. The FWC emphasised that the purpose of the ballot was to seek to improve the employees' conditions of employment, which was a workplace matter.

The FWC ordered that Endeavour must proceed with the proposed protected action ballot of employees, subject to the provisions of the Fair Work Act. The AMWU's application for an injunction to prevent the ballot was dismissed. The FWC also ordered that the parties must engage in good faith negotiations to resolve the industrial dispute.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Endeavour Energy Network Management 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