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
Fenner Dunlop Australia Pty Ltd
(B2021/445)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 JUNE 2021

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

[2] On 25 June 2021, my Associate was advised that the Respondent did not object to 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 Mr Barry Terzic 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.

[5] An order has been separately issued in PR731083.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of Fenner Dunlop Australia Pty Ltd. The union sought to do so on the basis of an industrial dispute between the union and the employer. Fenner Dunlop resisted the application on the basis that the union did not have sufficient membership to conduct the ballot. The Federal Court of Australia was asked to determine whether the union had sufficient membership to conduct the ballot.

The central legal issue before the Court was whether the union could conduct the ballot without the requisite membership. The union argued that the employer had conceded the requisite membership by not objecting to the ballot on this basis at an earlier meeting. The employer contended that the union did not have sufficient membership to conduct the ballot, and that the union could not rely on the employer’s failure to object to the requisite membership at an earlier meeting.

The Court found that the employer had not conceded that the union had sufficient membership to conduct the ballot. The employer had made a statement at a meeting that the union was able to conduct a ballot, but this was made in the context of a discussion about the timing of the ballot, and not its validity. The Court found that the employer’s failure to object to the requisite membership at that meeting did not amount to a concession. The Court found that the union did not have sufficient membership to conduct the ballot, and dismissed the union’s application.

The Court found that the union did not have sufficient membership to conduct the ballot, and dismissed the union’s application. The Court did not make any orders.

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