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

[2022] FWC 2000

FAIR WORK COMMISSION

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)

Foundation Civil & Mining Pty Ltd

(B2022/1142)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 28 JULY 2022

Proposed protected action ballot of employees of Foundation Civil & Mining 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 Foundation Civil & Mining Pty Ltd (the Respondent).

On 27 July 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 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.

An order has been separately issued in PR744272.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission (FWC) for an order to allow a protected action ballot to be held among certain employees of Foundation Civil & Mining Pty Ltd. This application was made under section 437 of the Fair Work Act 2009. The AMWU sought to conduct the ballot to determine the employees' support for potential protected actions, such as strikes or other forms of industrial action, due to ongoing disputes with the employer. The application was made without objection from the employer, Foundation Civil & Mining Pty Ltd.

The primary legal issue for the FWC to decide was whether the AMWU had satisfied the prerequisites for a protected action ballot under the Fair Work Act. Specifically, the FWC had to determine if the AMWU had genuinely attempted to negotiate with the employer and if there was a notification period in relation to the proposed agreement. The FWC also needed to confirm that the application complied with the requirements of section 443(1) of the Act. This involved assessing the declaration of Mr. Barry Terzic from the AMWU, which detailed the union's efforts to reach an agreement with the employer.

Upon reviewing the material presented, including Mr. Terzic's declaration and the AMWU's steps in bargaining with the employer, Deputy President Clancy found that the union had genuinely attempted to negotiate and that there was a notification period for the proposed agreement. The Deputy President concluded that the requirements of section 443(1) of the Fair Work Act were met. Consequently, the FWC granted the AMWU's application and ordered that a protected action ballot be conducted. This decision was made without a hearing, as the employer did not object to the application.

The Fair Work Commission issued an order in PR744272, allowing the AMWU to proceed with the protected action ballot among the specified employees of Foundation Civil & Mining Pty Ltd. The decision was rendered on 28 July 2022 in Melbourne. This outcome provided the employees with the opportunity to express their views on the proposed industrial action, thereby facilitating a resolution to the ongoing dispute between the union and the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established