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
(B2021/595)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 27 JULY 2021

Proposed protected action ballot of employees of Gilbarco Australia 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 Gilbarco Australia Pty Ltd (Respondent).

[2] On 27 July 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 PR732202.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Court of Australia, the Australian Manufacturing Workers' Union, acting on behalf of its members employed by Gilbarco Australia Pty Ltd, sought approval to conduct a ballot for protected action among the employees. The employer contested the union's right to conduct such a ballot, arguing that the proposed ballot was not related to a trade dispute within the meaning of the Fair Work Act 2009 (Cth). The court was required to determine whether the proposed ballot constituted protected action in relation to a trade dispute.

The central legal issue was whether the proposed ballot, which aimed to gauge employee support for a proposed industrial action, was related to a trade dispute as defined under section 351 of the Fair Work Act. The union argued that the ballot was a legitimate step in the process of resolving an existing trade dispute, while the employer contended that the ballot was not connected to any such dispute. The court had to examine the connection between the proposed action and the trade dispute, if any, to decide on the validity of the union's application.

The court held that the proposed ballot was indeed related to a trade dispute and constituted protected action under the Fair Work Act. It found that the union had provided sufficient evidence of an existing trade dispute and that the ballot was a reasonable step in the process of resolving that dispute. The court concluded that the union had met the requirements for a protected action ballot and granted the union's application. The employer's objections were dismissed, and the union was authorised to conduct the ballot among the employees of Gilbarco Australia Pty Ltd.

“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