“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Harvey Fresh (1994) Ltd

[2022] FWC 2060

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

Harvey Fresh (1994) Ltd

(B2022/1163)

VICE PRESIDENT CATANZARITI

SYDNEY, 3 AUGUST 2022

Proposed protected action ballot of employees of Harvey Fresh (1994) 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 Harvey Fresh (1994) Ltd (Respondent).

On 2 August 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 Daniel Hannan of the Applicant declared on 29 July 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 PR744481.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (Cth) for a protected action ballot order in relation to certain employees of Harvey Fresh (1994) Ltd. The AMWU sought the order following a period of bargaining with the Respondent, which it claimed had been unsuccessful. The FWC determined that the matter could be decided on the papers provided without the need for a hearing, as the Respondent did not oppose the application. The decision was based on the statutory declaration of Daniel Hannan of the AMWU, which outlined the union's efforts to reach an agreement with the Respondent.

The legal issues that the FWC was required to decide included whether the AMWU had genuinely tried to reach an agreement with Harvey Fresh (1994) Ltd, and whether the notification time for the proposed agreement had been met. The FWC also needed to consider whether the requirements of section 443(1) of the Act had been satisfied. The decision hinged on the evidence provided by the AMWU, which included a declaration setting out the union's bargaining efforts and the failure to reach an agreement with the Respondent.

The FWC concluded that the AMWU had genuinely tried to reach an agreement with Harvey Fresh (1994) Ltd, and that the notification time for the proposed agreement had been met. The Vice President was satisfied that the requirements of section 443(1) of the Act had been fulfilled, and therefore, determined to grant the AMWU's application for a protected action ballot order. The decision was based on the material provided, including the statutory declaration of Daniel Hannan of the AMWU, which outlined the union's efforts to reach an agreement with the Respondent.

The FWC issued an Order in PR744481, granting the AMWU's application for a protected action ballot order in relation to certain employees of Harvey Fresh (1994) Ltd. The decision was made on the basis of the material provided, including the statutory declaration of Daniel Hannan of the AMWU, which outlined the union's bargaining efforts and the failure to reach an agreement with the Respondent. The FWC concluded that the AMWU had genuinely tried to reach an agreement with the Respondent, and that the notification time for the proposed agreement had been met.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established