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
Etex Australia Pty Ltd
(B2021/563)

DEPUTY PRESIDENT DEAN

CANBERRA, 21 JULY 2021

Application for a variation of a Protected Action Ballot Order in B2021/422.

[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 [PR730765] (the Order) in matter B2021/422 on 16 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 Etex 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 11 August 2021.

[3] The AMWU and Etex 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 11 August 2021. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a variation of a Protected Action Ballot Order from the Fair Work Commission (FWC). The dispute arose from an industrial action involving employees of Etex Australia Pty Ltd, a company within the manufacturing sector. The AMWU aimed to amend the existing ballot order to include additional employees in the scope of the protected action, asserting that these employees were integral to the industrial action's objectives.

The central legal issue before the FWC was whether the proposed variation of the ballot order was permissible under the relevant provisions of the Fair Work Act 2009. Specifically, the Commission had to determine whether the AMWU had adequately justified the inclusion of additional employees within the scope of the protected action, and whether the modification would comply with the procedural and substantive requirements set out in the legislation.

The FWC found that the AMWU had satisfied the threshold criteria for varying the ballot order. The Commission acknowledged that the proposed changes were necessary to ensure the industrial action could proceed effectively. The AMWU demonstrated that the additional employees were directly involved in the dispute and their inclusion was essential to the protected action's objectives. The FWC concluded that the variation did not contravene any statutory provisions and was procedurally sound, thereby granting the application for the variation of the ballot order.

“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