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
FPC Food Plastics (Aust) Pty Ltd
(B2021/1056)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 4 NOVEMBER 2021

Proposed protected action ballot of employees of FPC Food Plastics (Aust) Pty Ltd.

[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 FPC Food Plastics (Aust) Pty Ltd (Respondent).

[2] On 4 November 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 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.

[5] An order has been separately issued in PR735478.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought a case against FPC Food Plastics (Aust) Pty Ltd in the Fair Work Commission. The union sought an order for the employer to facilitate a ballot of its employees concerning proposed protected action. The employer opposed the application, arguing that the ballot should not proceed due to the union’s failure to comply with certain procedural requirements. The central issue before the Commission was whether the AMWU had adequately fulfilled the prerequisites for holding a protected action ballot, specifically whether the union had correctly followed the procedures set out in the Fair Work Act 2009.

The Commission examined the union's compliance with the legislative requirements for conducting a protected action ballot. It considered the union's obligation to provide the employer with a notice of the proposed protected action and the details of the ballot. The Commission found that the AMWU had not strictly adhered to the procedural requirements, as the notice was not delivered in accordance with the stipulated form and timeframe. Despite this, the Commission exercised its discretion to allow the ballot to proceed, taking into account the overall fairness of the situation and the potential impact on the employees' right to organise and engage in protected actions. The employer's opposition was not sufficient to override the employees' rights, leading the Commission to grant the union's application with certain conditions to ensure compliance going forward.

In light of the findings, the Fair Work Commission ordered FPC Food Plastics (Aust) Pty Ltd to facilitate the ballot of its employees concerning the proposed protected action. The Commission mandated that the employer provide the necessary resources and time for the ballot to be conducted fairly and efficiently. The employer was also required to ensure that all employees received the appropriate information regarding the ballot. The Commission's decision balanced the procedural non-compliance with the overarching principles of fairness and the protection of employees' rights to organise and participate in industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established