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

[2022] FWC 118

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

(B2022/24)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 24 JANUARY 2022

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

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

On 24 January 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Michael Wickham 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 PR737697.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Australian Manufacturing Workers' Union (AMWU) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of Epiroc Australia Pty Ltd. The AMWU sought to hold a ballot for protected action, asserting that it had been genuinely attempting to reach an agreement with the employer. Epiroc Australia Pty Ltd did not object to the application, and the matter proceeded without a hearing. The Deputy President reviewed the material submitted, including a declaration from the AMWU stating the steps taken in bargaining with the employer, and found that the union met the requirements for a protected action ballot as stipulated in section 443(1) of the Act.

The primary legal issue before the court was whether the AMWU had satisfied the conditions set out in section 437 of the Fair Work Act to conduct a protected action ballot. This involved determining if the union had genuinely attempted to reach an agreement with Epiroc Australia Pty Ltd and if the requisite notification time had been met. Additionally, the court needed to ensure that the union's application complied with the procedural requirements outlined in the Act. The Deputy President evaluated the declaration and other supporting documents to ascertain if the AMWU had acted in accordance with the legislative provisions and if the application met the necessary criteria.

After reviewing the evidence and considering the submissions, the Deputy President found that the AMWU had indeed satisfied the conditions for holding a protected action ballot. The union's declaration and the accompanying documents demonstrated that it had genuinely attempted to reach an agreement with Epiroc Australia Pty Ltd. The Deputy President also confirmed that the notification period specified in the Act had been observed. Consequently, the application for a protected action ballot was approved. The court determined that the AMWU had fulfilled the requirements of section 437 and the relevant provisions of the Fair Work Act, thereby permitting the union to proceed with the ballot.

In light of the findings, the Deputy President issued an order approving the AMWU's application for a protected action ballot. The decision was made without a hearing, as Epiroc Australia Pty Ltd did not object to the application. The court’s order allowed the AMWU to conduct the ballot as per the provisions of the Fair Work Act, ensuring that the union's rights to organise and bargain collectively were upheld. This decision underscores the importance of the union's obligation to genuinely attempt to reach an agreement with the employer before seeking to conduct protected action, as mandated by the Act.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established