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

[2022] FWC 2338

FAIR WORK COMMISSION

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

Fonterra Australia Pty Ltd

(B2022/1317)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 5 SEPTEMBER 2022

Proposed protected action ballot of employees of Fonterra Australia Pty Ltd

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

On 2 September 2022, my Associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

On the basis of the material before me, including the declaration of Mr Michael Wickham 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.

An order has been separately issued in PR745454.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was presented with an application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), seeking a protected action ballot order concerning certain employees of Fonterra Australia Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The AMWU sought to conduct a protected action ballot, indicating an intention to take industrial action if negotiations with the employer did not result in a satisfactory agreement. The employer, Fonterra Australia Pty Ltd, did not object to the application, which facilitated the Commission's decision to determine the matter on the basis of the documents provided.

The central legal issue before the Commission was whether the AMWU had met the statutory requirements to conduct a protected action ballot. Specifically, the AMWU needed to demonstrate that it had genuinely attempted to negotiate with Fonterra Australia Pty Ltd and that there was a notification time in relation to the proposed agreement. The Commission had to consider the declaration provided by Mr Michael Wickham of the AMWU, which detailed the bargaining process and the union's efforts to reach an agreement with the employer. The Commission's decision hinged on whether these efforts met the legislative criteria outlined in section 443(1) of the Act.

The Deputy President of the Fair Work Commission, Clancy, determined that the AMWU had fulfilled the necessary conditions for conducting a protected action ballot. The declaration by Mr Wickham and the absence of objections from Fonterra Australia Pty Ltd provided sufficient evidence that the union had genuinely engaged in bargaining and met the notification time requirement. Consequently, the Commission concluded that the AMWU was entitled to proceed with the ballot. An order was issued in accordance with the application, enabling the union to move forward with the proposed industrial action if negotiations remained unresolved.

The final order granted by the Fair Work Commission allowed the AMWU to proceed with the protected action ballot as requested. This decision underscores the importance of demonstrating genuine bargaining efforts and meeting notification time requirements when seeking to conduct industrial action under the Fair Work Act 2009.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established