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

[2022] FWC 994

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

FreshFood Management Services Pty Ltd

(B2022/332)

VICE PRESIDENT CATANZARITI

SYDNEY, 2 MAY 2022

Proposed protected action ballot of employees of FreshFood Management Services 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of FreshFood Management Services Pty Ltd (Respondent).

On 28 April 2022, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Jacqueline Carovska of the Applicant declared on 14 April 2022, 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 PR741129.

VICE 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 an order for a protected action ballot. The application was made under section 437 of the Fair Work Act 2009 and related to certain employees of FreshFood Management Services Pty Ltd. The AMWU was seeking to organise a ballot to determine if its members were in favour of protected action, likely in the form of a strike or other industrial action, due to an inability to reach an agreement with FreshFood Management Services Pty Ltd.

The primary legal issue for the Fair Work Commission to decide was whether the AMWU had met the requirements set out in the Fair Work Act for conducting a protected action ballot. Specifically, the Commission needed to determine whether the union had genuinely attempted to reach an agreement with FreshFood Management Services Pty Ltd and if the notification period specified in the Act had been complied with. This determination was based on the statutory declaration provided by Jacqueline Carovska of the AMWU, which detailed the union's bargaining efforts and its ongoing attempts to reach an agreement with the employer.

After reviewing the material provided, including the declaration from the AMWU, the Vice President of the Fair Work Commission, Catanzariti, concluded that the union had indeed met the statutory requirements. The Commission was satisfied that the AMWU had genuinely been trying to reach an agreement with FreshFood Management Services Pty Ltd and that the notification period outlined in the Act had been adhered to. Consequently, the Vice President decided to grant the AMWU's application without the need for a hearing. An order was issued in PR741129, allowing the AMWU to proceed with the protected action ballot among the specified employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established