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

[2022] FWC 1374

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

Epiroc Australia Pty Ltd

(B2022/500)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 31 MAY 2022

Proposed protected action ballot of employees of Epiroc Australia Pty Ltd.

This is an application by the Transport Workers’ Union of Australia (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Southlink Pty Ltd (the Respondent).

I conducted a Mention with the parties on 31 May 2022.

The Respondent raised a question regarding the group or groups of employees to be balloted. I do not consider the question prevents me from determining the application and issuing the order sought.

On the basis of the material before me, including the declaration of Mr Simon Russell of the Applicant 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.

An order has been separately issued in PR742194.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of certain employees, applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 for an order allowing a protected action ballot. The application was against Epiroc Australia Pty Ltd. The AMWU sought to ballot employees in relation to potential protected actions, presumably related to industrial disputes. Deputy President Clancy heard the matter in Melbourne on 31 May 2022.

The central legal issue before Deputy President Clancy was whether the AMWU had satisfied the statutory requirements to conduct a protected action ballot. The AMWU had to demonstrate that it had genuinely attempted to negotiate with Epiroc Australia Pty Ltd and that the notification period for the proposed agreement had been met. The AMWU submitted a declaration by Mr Simon Russell, outlining the union's bargaining efforts and its attempts to reach an agreement with the respondent. The respondent questioned the precise groups of employees to be included in the ballot, but Deputy President Clancy determined that this did not impede the ability to decide the application.

Deputy President Clancy concluded that the AMWU had demonstrated the necessary steps had been taken to bargain with Epiroc Australia Pty Ltd and that the union had genuinely tried to reach an agreement. Furthermore, Deputy President Clancy was satisfied that the notification period for the proposed agreement had been met, and the requirements under section 443(1) of the Fair Work Act had been fulfilled. Therefore, the Deputy President issued the sought-after protected action ballot order.

An additional order was separately issued in PR742194, as mentioned in the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established