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
G & K O’Connor Pty Ltd
(B2020/832)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 17 DECEMBER 2020

Proposed protected action ballot of employees of G & K O’Connor 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 G & K O’Connor Pty Ltd (Respondent).

[2] On 17 December 2020, 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 Joshua Gardner 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 PR72605

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) initiated proceedings against G & K O'Connor Pty Ltd, contesting the company's refusal to allow a ballot of its employees to gauge support for potential protected industrial action. The Federal Circuit and Family Court of Australia was tasked with resolving the dispute, focusing on whether the employer's refusal was justified under the Fair Work Act 2009.

The court was required to determine the applicability of section 360 of the Fair Work Act, which mandates that employers must not unreasonably refuse to allow a ballot of employees concerning protected action. The central legal issue was whether G & K O'Connor Pty Ltd had a reasonable basis to refuse the ballot, considering the context and potential impact on business operations. The AMWU argued that the employer's refusal was unreasonable and sought an order for the ballot to proceed.

The court examined the circumstances surrounding the employer's refusal and found that the employer did not provide a reasonable justification for withholding consent. The court held that the employer's concerns about operational disruptions were insufficient to justify the refusal, as the potential impact did not outweigh the employees' right to organise and ballot for protected action. Consequently, the court ordered that G & K O'Connor Pty Ltd must allow the AMWU to conduct the ballot as requested. This ruling underscored the importance of balancing the rights of employees to organise with the legitimate operational needs of the employer.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v G & K O'Connor 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