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
Ferretti International
(B2021/767)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 7 SEPTEMBER 2021

Proposed protected action ballot of employees of Ferretti International.

[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 Ferretti International (Respondent).

[2] On 7 September 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 Stuart Gordon 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 PR733598.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order from the Federal Court that would allow a ballot of employees of Ferretti International regarding proposed protected action. The union had written to Ferretti International notifying the company of the proposed action, which was to be a 24-hour stoppage of work on a specified date. The union's intention was to hold the ballot on the day prior to the stoppage. Ferretti International argued that the ballot should be held no less than five days before the proposed stoppage, as required by section 196 of the Fair Work Act 2009. The union disputed this and applied to the Court for an order that would allow the ballot to proceed as scheduled.

The Court considered the meaning of the word "before" in section 196 and concluded that it did not mean "no later than four days before" the stoppage, as the union had argued. Rather, the Court held, the word "before" meant "earlier than" the stoppage. As such, the ballot had to be held earlier than the day of the stoppage. The Court found that the union's proposed ballot did not meet the requirements of the Act and dismissed the union's application.

The Court found that the union's interpretation of the word "before" was not consistent with the ordinary meaning of the word, and that the union had not provided any evidence to suggest that the Act should be interpreted as it had. The Court held that the union's proposed ballot was invalid and that the union was not authorised to hold a ballot on the day prior to the stoppage. The Court did not grant the relief sought by the union.

The Court made no orders in relation to the union's application.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established