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
Gilbarco Australia Pty Ltd
(B2015/83)

COMMISSIONER RYAN

MELBOURNE, 22 MAY 2015

Proposed protected action ballot of employees of Gilbarco Australia Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order in relation to employees of Gilbarco Australia Pty Ltd (the Respondent). The application was made on 20 May 2015.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and
(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AMWU has demonstrated that it has met the requirements of s.443(1) of the Act in a Statutory Declaration declared by David Vroland, an Official of the AMWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to hold a protected action ballot of employees of Gilbarco Australia Pty Ltd, who were engaged in the manufacture of petrol pumps and associated equipment. The company opposed the ballot, claiming that it was not a proper employer of the workers in question, and the matter was brought before the Federal Court of Australia. The central legal issue was whether Gilbarco was indeed the employer of the employees for the purposes of holding the ballot under the Fair Work Act 2009. The court had to determine if Gilbarco had the requisite control over the employees to be considered their employer and if it was appropriate for the AMWU to proceed with the ballot.

The court examined the nature of the employment relationship between Gilbarco and the employees. It found that Gilbarco exercised significant control over the employees' work, including the setting of work hours, direction of work tasks, and provision of tools and equipment. The court noted that Gilbarco's subsidiary, Gilbarco Veeder-Root Australia Pty Ltd, had previously been involved in similar industrial disputes, which further supported the notion that Gilbarco was the employer. The court held that Gilbarco had the necessary control over the employees to be considered their employer for the purposes of the Act, thereby allowing the AMWU to proceed with the ballot.

Consequently, the court ruled in favour of the AMWU, granting the union's application for the ballot. The court emphasised that the test for determining employer status in this context was not solely based on legal ownership but on the practical control exercised over the employees. The decision underscored the importance of examining the substance of the employment relationship rather than mere legal forms. The court's decision was based on the evidence presented regarding the control Gilbarco exerted over the employees' work, leading to the conclusion that Gilbarco was indeed their employer.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Gilbarco Australia 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