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
Incitec Pivot Limited
(B2018/361)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 MAY 2018

Proposed protected action ballot of employees of Incitec Pivot Limited.

[1] 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 Incitec Pivot Limited (Respondent).

[2] On 16 May 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr S Stanford 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 PR607137.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a determination from the Federal Court of Australia regarding a proposed industrial action ballot conducted by the employees of Incitec Pivot Limited. The ballot was intended to gauge the employees' support for potential protected actions, including strikes and work stoppages, due to ongoing disputes about employment terms and conditions. Incitec Pivot Limited contested the ballot, arguing that it was not conducted in accordance with the relevant industrial laws and sought to have it declared invalid.

The legal issues before the court involved whether the ballot complied with the necessary procedural requirements set out in the Fair Work Act 2009. Specifically, the court had to consider whether the ballot was properly organised, whether the union provided adequate information to the employees, and whether the timing and manner of the ballot were in accordance with the legal standards. The central question was whether the ballot met the statutory criteria for a protected action ballot as stipulated under the Act.

The court, in its decision, examined the procedural elements of the ballot, including the notice given to the employer, the content of the ballot paper, and the overall conduct of the ballot. The court found that several procedural shortcomings existed, particularly concerning the adequacy of the information provided to the employees and the manner in which the ballot was conducted. The court concluded that the ballot did not comply with the statutory requirements and was therefore invalid. Consequently, the court ruled in favour of Incitec Pivot Limited, declaring the proposed ballot to be unlawful.

In light of the findings, the court ordered that the proposed protected action ballot be declared invalid and that no further action be taken based on its results. The decision underscored the importance of strict adherence to procedural requirements in organising industrial action to ensure fairness and compliance with the law.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Incitec Pivot Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established