“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines

[2022] FWC 1623

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

Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines

(B2022/595)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 JUNE 2022

Proposed protected action ballot of employees of Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines.

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 Iplex Pipelines Australia Pty Ltd T/A Ipex Pipelines (the Respondent).

The Respondent initially advised my Chambers that it did not object to the protected action ballot order being made. However, it raised a concern in relation to the form and content of the order, specifically the industrial action identified in question 9 of the proposed order and requested the Applicant to withdraw the question. In further correspondence to my Chambers, the Respondent confirmed its position and maintained its request for the removal of question 9 and the Applicant proposed an amended form of wording for proposed question 9. After reviewing the Application form, the Statutory Declaration and the correspondence from the parties, and while acknowledging the question about the clarity of the proposed question 9 raised by the Respondent, I cannot see a statutory basis upon which the Applicant’s application should be rejected.

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 declaration of Mr Barry Terzic 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 PR743029.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a protected action ballot order from the Fair Work Commission in relation to employees of Iplex Pipelines Australia Pty Ltd T/A Iplex Pipelines. The AMWU applied under section 437 of the Fair Work Act 2009, citing that it had been genuinely attempting to reach an agreement with the employer regarding the terms of employment. The employer did not oppose the order but raised concerns about the form and content of the ballot, particularly the wording of question 9. The employer requested that the question be withdrawn or amended, and the AMWU subsequently proposed an amended version of the question.

The legal issues before the court involved whether the AMWU's application should be rejected due to the employer's concerns about the ballot's form and content, and if the AMWU had met the statutory requirements for initiating a protected action ballot. The court needed to determine if there was a notification period in relation to the proposed agreement and if the AMWU had genuinely been trying to reach an agreement with the employer. The Deputy President also had to consider if there was a statutory basis to reject the application and whether a hearing was necessary.

Upon reviewing the application, the Statutory Declaration, and the correspondence from the parties, the Deputy President found no statutory basis to reject the AMWU's application. The court concluded that the AMWU had satisfied the notification time in relation to the proposed agreement and had met the requirements of section 443(1) of the Act. Consequently, the Deputy President decided to determine the matter based on the documents submitted without holding a hearing. An order was issued separately in PR743029.

The final orders were issued in PR743029, granting the AMWU's application for a protected action ballot order. The employer's concerns about the form and content of the ballot were not deemed sufficient grounds to reject the application. The court upheld the AMWU's position that it had followed the necessary steps and was genuinely attempting to reach an agreement with the employer.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established