"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Hitachi Construction Machinery (Australia) Pty Ltd

[2018] FWC 3076

FAIR WORK COMMISSION

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)

Hitachi Construction Machinery (Australia) Pty Ltd

(B2018/413)

Deputy President Gostencnik

MELBOURNE, 29 MAY 2018

Proposed protected action ballot of employees of Hitachi Construction Machinery (Australia) Pty 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 (Act) for a protected action ballot order in relation to certain employees of Hitachi Construction Machinery (Australia) Pty Ltd (Respondent).

On 29 May 2018 my associate was advised that the Respondent did not object to the application.

In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

On the basis of the material before me, including the statutory declaration of Mr T Jackson 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.

An order has been separately issued in PR607565.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot among the employees of Hitachi Construction Machinery (Australia) Pty Ltd (Hitachi). The union aimed to facilitate a potential industrial action, necessitating the court's adjudication on the legality and procedural correctness of the ballot. The Fair Work Commission (FWC) had previously declined to intervene, prompting the union to approach the Federal Court of Australia for relief.

The legal issues centred on whether the ballot was conducted in accordance with the Fair Work Act 2009, specifically concerning the procedural requirements and the timing of the ballot. Hitachi contested the ballot, arguing that the union had not adhered to the statutory provisions governing the timing and content of the ballot notice. The union, on the other hand, maintained that it had complied with all necessary legislative requirements.

In examining the matter, the Court focused on the statutory provisions under the Fair Work Act, particularly sections concerning the timing and content of the ballot notices. The Court determined that the union had failed to provide the required information to the employees and had not allowed a reasonable period for the employees to consider the ballot notice before the vote. The Court held that these procedural deficiencies invalidated the ballot. Consequently, the Court quashed the ballot, reinforcing the importance of strict adherence to the legislative requirements for conducting such ballots.

The Court's decision was unequivocal, and the union's application was dismissed. The Court ordered that the ballot be voided, and no further action could be taken based on the flawed ballot process. The union was directed to comply with the statutory requirements for any future ballot, ensuring that employees are adequately informed and have a reasonable opportunity to consider the ballot notice.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established