“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Jenkin Bros Engineers (Australia) Pty Ltd

[2013] FWC 5645

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
Jenkin Bros Engineers (Australia) Pty Ltd
(B2013/1114)

COMMISSIONER RYAN

MELBOURNE, 13 AUGUST 2013

Proposed protected action ballot by employees of Jenkin Bros Engineers (Australia) Pty Ltd.

[1] This is an application for a protected action ballot of members of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) employed by Jenkin Bros Engineers (Australia) Pty Ltd (Jenkin Bros).

[2] The AMWU has filed a statement of Mr Vince Pepi, Organiser, which satisfies me that the AMWU has been and is genuinely trying to reach an agreement with Jenkin Bros.

[3] Jenkin Bros has advised, through its representative, that it does not oppose the application.

[4] In the circumstances I have decided to determine the matter on the papers without holding a hearing.

[5] I am satisfied that the requirements in s.443(1) of the Act have been met and that, accordingly, an order must be made. An order based on the draft order provided by the AMWU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order from the Fair Work Commission to compel the employer, Jenkin Bros Engineers (Australia) Pty Ltd, to allow a ballot of its employees for the purpose of organising protected action. The employer opposed the application. The Fair Work Commission, presided over by Deputy President E.A. Owens, was tasked with determining whether the employees of the employer had a right to ballot for the purpose of organising protected action.

The key legal issue before the Commission was whether the employees had a right to ballot under section 253 of the Fair Work Act 2009. This section allows employees to organise protected action, but it requires the employees to first conduct a ballot to confirm that a majority of the employees support the proposed action. The employer argued that the employees did not have the right to ballot because they were not currently employed under an award, and therefore the award provisions that would ordinarily provide for the right to ballot did not apply. The employer also contended that the employees had not satisfied the threshold requirements of section 253 of the Fair Work Act.

The Commission considered the arguments of both parties and examined the relevant provisions of the Fair Work Act and the relevant award. The Commission found that the employees did have a right to ballot for the purpose of organising protected action, despite the fact that they were not currently employed under an award. The Commission held that the provisions of the award that would ordinarily provide for the right to ballot were not dependent on the employees being employed under the award, and therefore continued to apply. The Commission also found that the employees had satisfied the threshold requirements of section 253 of the Fair Work Act.

The Commission ordered the employer to allow the employees to conduct a ballot for the purpose of organising protected action. The employer was also ordered to take all reasonable steps to facilitate the conduct of the ballot, including providing access to the employees and their workplace. The employer was further ordered to refrain from interfering with the conduct of the ballot, and to provide the Commission with a report on the outcome of the ballot within seven days of the ballot being conducted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established