DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
FMP Group (Australia) Pty Limited
(B2017/177)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 1 MARCH 2017

Proposed protected action ballot of employees of FMP Group (Australia) Pty Limited.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of FMP Group (Australia) Pty Limited (the Respondent).

[2] On 1 March 2017 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr B 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 PR590621.

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 among employees of FMP Group (Australia) Pty Limited. The Fair Work Commission (FWC) was asked to determine whether the ballot was permissible under the Fair Work Act 2009 (Cth). The primary issue before the FWC was whether the proposed ballot fell within the definition of "protected action" as set out in the Fair Work Act and whether the AMWU had complied with the procedural requirements for conducting such a ballot. Specifically, the FWC needed to assess whether the AMWU had given the necessary 21 days' written notice to the employer and whether the ballot was being conducted for a permitted purpose.

The FWC examined the evidence provided by the AMWU regarding the timing and content of the notice given to FMP Group and whether the ballot was being held for a permitted purpose, such as seeking to improve employees' terms and conditions of employment. The FWC concluded that the AMWU had failed to provide the required 21 days' written notice to FMP Group, and thus, the ballot did not meet the statutory requirements. Consequently, the FWC determined that the proposed ballot was not protected action within the meaning of the Fair Work Act. As a result, the AMWU's application to conduct the ballot was dismissed. The FWC ordered that the AMWU was not permitted to proceed with the ballot without first complying with the notice provisions in the Fair Work Act.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v FMP Group (Australia) Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established