DECISION

Fair Work Act 2009
s.447—Protected action

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Enware Australia Pty Limited
(B2021/561)

DEPUTY PRESIDENT DEAN

CANBERRA, 21 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/409.

[1] An application has been made by the Australian Electoral Commission (AEC) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR730657] (the Order) in matter B2021/409 on 10 June 2021. The Order was made upon application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in respect of employees of Enware Australia Pty Limited.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 5 August 2021.

[3] The AMWU and Enware Australia Pty Limited were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

[6] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote to 5 August 2021. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union, also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, lodged an application seeking to vary a Protected Action Ballot Order in relation to a dispute with Enware Australia Pty Limited. The dispute centred around the terms and conditions of employment, specifically concerning potential changes to the employees' shift patterns and rostering arrangements. The Commission was required to determine whether the proposed changes to the ballot order would be justified under the relevant legislative provisions.

The key legal issues before the Commission were whether the AMWU had demonstrated sufficient grounds for varying the original ballot order, and whether such a variation would be in the best interests of the employees and the proper conduct of the protected action. The AMWU argued that new information had come to light that warranted a revision of the ballot order to better reflect the employees' concerns and the scope of the proposed changes. Enware, on the other hand, contended that the existing ballot order was adequate and that any changes would unnecessarily prolong the dispute.

The Fair Work Commission carefully considered the arguments presented by both parties and examined the relevant legal frameworks, including the Fair Work Act and the Commission's own procedural guidelines. The Commission found that the AMWU had not provided sufficient evidence to support a variation of the ballot order, and that the proposed changes did not significantly alter the nature of the dispute or the employees' interests. Consequently, the application for a variation was dismissed, and the original ballot order remained in effect.

In light of the decision, the Commission issued directions for the continuation of the protected action ballot process, ensuring that the employees' rights were protected and the dispute was resolved in a timely and fair manner. The Commission's decision provided clarity on the procedural aspects of the dispute and upheld the integrity of the protected action process.

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