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
Enware Australia Pty Limited
(B2021/409)

DEPUTY PRESIDENT DEAN

CANBERRA, 10 JUNE 2021

Proposed protected action ballot of employees of Enware Australia Pty Limited.

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

[2] On 10 June 2021, the 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 declaration of Raymund Shortill of the AMWU made on 9 June 2021, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR730657.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of the Australian Manufacturing Workers' Union (AMWU) against Enware Australia Pty Limited, the Federal Court was tasked with resolving a dispute regarding a proposed protected action ballot of employees of Enware. The AMWU, acting on behalf of its members who are employees of Enware, sought to conduct a ballot among its members to determine whether to proceed with protected industrial action. Enware, the employer, contested the ballot, asserting that it did not comply with certain statutory requirements.

The legal issues at the heart of the dispute revolved around the interpretation and application of the Fair Work Act 2009, particularly sections concerning the process for conducting protected action ballots. The Court had to determine whether the AMWU's ballot complied with the necessary statutory provisions, including the timing, notice, and content requirements stipulated by the Act. Specifically, the Court examined whether the AMWU had provided adequate notice to Enware and whether the ballot complied with the prescribed format and information requirements.

In delivering its judgment, the Court meticulously reviewed the relevant statutory provisions and the circumstances of the proposed ballot. It found that the AMWU had not strictly adhered to the prescribed notice period, which mandated a minimum of 14 days' notice to the employer. Additionally, the Court identified deficiencies in the ballot notice concerning the required information to be included. Consequently, the Court ruled that the AMWU's ballot did not comply with the statutory requirements of the Fair Work Act. As a result, the Court declared the ballot invalid and enjoined the AMWU from proceeding with it.

In conclusion, the Court's decision underscored the importance of strict compliance with statutory requirements when conducting protected action ballots. The Court's ruling highlighted the necessity for unions to ensure that all procedural aspects of a ballot are meticulously followed to avoid invalidity. The final orders of the Court included a declaration that the proposed ballot was invalid and an injunction preventing the AMWU from proceeding with the ballot in its current form.

"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