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
Foodmach Pty Ltd T/A Foodmach
(B2021/683)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 17 AUGUST 2021

Proposed protected action ballot of employees of Foodmach Pty Ltd T/A Foodmach.

[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 Foodmach Pty Ltd T/A Foodmach (Respondent).

[2] On 17 August 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 Raoul Wainwright 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 PR732921.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration from the Fair Work Commission that a proposed protected action ballot of employees of Foodmach Pty Ltd T/A Foodmach was to be conducted in accordance with the requirements of the Fair Work Act 2009. Foodmach opposed the application on the basis that the ballot did not comply with the statutory requirements. The Commission found that the ballot did not comply with the Act and dismissed the application. The AMWU appealed the decision to the Federal Court, which found in favour of the union.

The central issue for the court was whether the ballot complied with the statutory requirements of the Fair Work Act 2009. Specifically, the court was required to determine whether the ballot complied with section 363 of the Act, which sets out the requirements for a protected action ballot. The court also considered whether the Commission had erred in its interpretation of section 363. The AMWU argued that the ballot complied with the requirements of the Act, while Foodmach argued that it did not.

The court found that the ballot complied with the requirements of the Act. The court noted that section 363 of the Act requires that a ballot must be conducted in accordance with the rules set out in the Act and must be conducted in a manner that ensures that the ballot is secret and that the employees' votes are not influenced by any person. The court found that the ballot in this case complied with these requirements. The court also found that the Commission had erred in its interpretation of section 363, as it had not taken into account the context in which the ballot was conducted. The court found that the ballot was conducted in a manner that ensured that the employees' votes were not influenced by any person and that the ballot was secret.

The court remitted the matter back to the Commission for further consideration in light of the court's findings. The court found that the Commission had not considered all of the relevant evidence and had erred in its interpretation of section 363 of the Act. The court found that the ballot complied with the requirements of the Act and that the Commission had erred in its decision to dismiss the application. The court ordered that the matter be remitted back to the Commission for further consideration.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Foodmach Pty Ltd T/A Foodmach

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established