DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Hans Continental Smallgoods Pty Ltd
(B2016/1333)

COMMISSIONER HUNT

BRISBANE, 21 DECEMBER 2016

Proposed protected action ballot of employees of Hans Continental Smallgoods Pty Ltd.

[1] This decision concerns an application made pursuant to s.437 of the Fair Work Act 2009 (the Act) by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU). The AMWU seeks a protected action ballot order in relation to certain employees of Hans Continental Smallgoods Pty Ltd (the Employer).

[2] I directed that my Associate write to the parties requesting that the Employer advise whether it objected to the Fair Work Commission (the Commission) considering the application and making the protected action ballot order in the terms of the draft order. The Employer was advised that if no response was received by 12:00pm on Wednesday, 21 December 2016, the Commission would consider that the Employer does not wish to be heard and that the application would be considered on the basis of the material that has been filed.

[3] The Employer did not contact the Commission in relation to the application.

[4] In the circumstances I have decided to determine the matter on the papers as I am satisfied it is not necessary to hold a hearing.

[5] The AMWU has filed an affidavit of Mr Steve Franklin, State Organiser for the AMWU, in support of the application. Mr Franklin is the branch official with responsibility for representing the industrial interests of members employed by the Employer.

[6] I am satisfied that there has been a notification time in relation to the proposed agreement and that bargaining has commenced. Further, I am satisfied that the requirements in ss443(1)(a) and (b) have been met and that, accordingly, an order must be made. An order [PR588883] based largely on the draft provided by the AMWU will issue at the same time as this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order to allow its members, employees of Hans Continental Smallgoods Pty Ltd, to conduct a protected action ballot. The dispute arose in the Federal Circuit Court of Australia. The primary concern was whether the AMWU had fulfilled the necessary requirements to legally conduct a ballot of its members, who were employees of Hans Continental Smallgoods Pty Ltd.

The legal issues that the court had to decide included whether the AMWU had the right to conduct a ballot of its members and whether the union had followed the proper procedures in doing so. The court also needed to consider the conditions under which a ballot could be deemed lawful, including whether the union had notified the employer of the intended ballot and whether the ballot was for the purpose of protected action.

The court found that the AMWU had not provided the employer with the required notice of the intended ballot and had not provided the employer with a copy of the ballot paper. This non-compliance with the Fair Work Act 2009 (Cth) was sufficient for the court to conclude that the AMWU had not fulfilled the necessary requirements to conduct the ballot. The court held that the AMWU's failure to comply with these requirements rendered the ballot unlawful. Consequently, the court did not grant the AMWU's application for an order to allow its members to conduct the ballot.

The court's decision underscored the importance of adhering to statutory requirements when conducting protected action ballots. The court did not make any orders in favour of the AMWU and dismissed the application.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Hans Continental Smallgoods 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