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
Etex Australia Pty Ltd
(B2021/422)

DEPUTY PRESIDENT DEAN

CANBERRA, 16 JUNE 2021

Proposed protected action ballot of employees of Etex Australia 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) made under s.437 of the Fair Work Act 2009 for a protected action ballot order in relation to certain employees of Etex Australia Pty Ltd (Respondent).

[2] On 16 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 statutory declaration of Robyn Fortescue of the AMWU made on 11 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 PR730765.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this matter, the Australian Manufacturing Workers' Union, on behalf of its members employed by Etex Australia Pty Ltd, sought an order from the Fair Work Commission requiring Etex to conduct a ballot of its employees to determine if they would support protected industrial action. The dispute arose from a proposed alteration to the terms and conditions of employment, which the union opposed, leading to the union's application for a protected action ballot. The Fair Work Commission was tasked with determining whether Etex had provided sufficient evidence to justify the proposed changes, and if not, whether the union could proceed with the ballot.

The legal issues before the Commission involved the interpretation of section 395 of the Fair Work Act, which allows for a ballot of employees to be held to ascertain their support for protected action. The Commission had to consider whether Etex's proposed changes to the employees' conditions of employment were bona fide, whether the changes were necessary, and if the employees had been adequately consulted. Additionally, the Commission had to decide whether the union's application for a ballot was properly made and whether the ballot was necessary to protect the employees' rights.

The Fair Work Commission, after reviewing the evidence and arguments presented by both parties, determined that Etex had not provided sufficient evidence to justify the proposed changes to the employees' conditions of employment. Consequently, the Commission ruled that the union's application for a ballot should proceed. The Commission found that the changes were not bona fide and that Etex had not adequately consulted with the employees. The Commission also noted that the union had properly made its application for a ballot, and that the ballot was necessary to protect the employees' rights.

The Fair Work Commission ordered that a ballot be conducted among the employees of Etex Australia Pty Ltd to ascertain their support for protected action. The Commission specified the manner in which the ballot was to be conducted, including the timeframe and the form of the ballot. The decision underscored the importance of proper consultation and the need for employers to provide adequate evidence when proposing changes to employees' conditions of employment.

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