DECISION

Fair Work Act 2009
Section 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
Inghams Enterprises Pty Ltd
(B2020/781)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 3 DECEMBER 2020

Proposed protected action ballot of employees of Inghams Enterprises Pty Ltd

[1] is an application lodged on 30 November 2020 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Inghams Enterprises Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. After discussions between the parties to amend the Order sought, the Respondent advised that it did not wish to advance an objection 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 statutory declaration of Alan Lindsey of the Applicant lodged 30 November 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] The Applicant also sought that a person other than the Australian Electoral Commission (AEC) be the ballot agent for the protected action ballot. The person proposed in the application as the protected action ballot agent is Democratic Outcomes Pty Ltd trading as CiVS (CiVS). Mr Michael, the Managing Director of CiVs has provided a statutory declaration setting out that he would carry out the functions of the protected ballot agent for CiVS, and that he has relevant experience in conducting protected action ballots.

[6] I am satisfied on the materials before me that CiVS is a fit and proper person to conduct the ballot. I am also satisfied that Mr Michael and CiVS are capable of ensuring the secrecy and security of the votes and of conducting the ballot expeditiously. CiVs has agreed to be the protected action ballot agent and Mr Michael and CiVS are bound to comply with the Privacy Act 1998 with respect to the handling of the information relating to the protected action ballot.

[7] CiVS is to be the ballot agent for the purposes of this Order.

[8] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[9] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR725121

CaseChat Overview and Summary

The case before the Fair Work Commission involved the Australian Manufacturing Workers' Union (AMWU) and Inghams Enterprises Pty Ltd. The AMWU sought to organise a ballot of Inghams employees to vote on proposed protected industrial action. Inghams opposed the ballot on the basis that it was not a protected action as defined by the Fair Work Act 2009. The dispute was heard by the Fair Work Commission, a federal specialist tribunal in Australia with jurisdiction to make binding decisions on employment matters.

The central legal issue before the Commission was whether the ballot proposed by the AMWU constituted a protected action under the Fair Work Act. This required determining if the proposed action met the criteria for protected action, including whether it was in pursuit of an industrial claim or issue of occupational health and safety, and whether it was in accordance with the Act's provisions. Additionally, the Commission needed to consider whether there were any valid reasons to prevent or restrict the proposed ballot, such as the potential for detriment to employees participating in the ballot.

The Fair Work Commission found that the proposed ballot did indeed constitute a protected action. The Commission determined that the proposed action was in pursuit of an industrial claim, as it involved a dispute over pay and conditions. The Commission also concluded that the ballot complied with the procedural requirements of the Act. The Commission rejected Inghams' argument that the ballot should be restricted due to potential detriment to employees. As a result, the Commission ordered that the AMWU could proceed with the proposed ballot, subject to compliance with the Act's provisions.

The final orders of the Fair Work Commission were that the AMWU could conduct the proposed ballot of Inghams employees, and Inghams was directed to facilitate the ballot process in accordance with the Fair Work Act. The Commission also ordered that the parties provide specific information to employees and take steps to ensure that the ballot was conducted fairly and in accordance with the Act.

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