“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v K & R Fabrications (W'Gong) Pty Ltd

[2022] FWC 1857

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

K & R Fabrications (W’Gong) Pty Ltd

(B2022/689)

VICE PRESIDENT CATANZARITI

SYDNEY, 15 JULY 2022

Proposed protected action ballot of employees of K & R Fabrications (W’Gong) 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of K & R Fabrications (W’Gong) Pty Ltd (Respondent).

On 15 July 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of Gavin Bubb of the Applicant declared on 14 July 2022, 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 PR743826.

VICE PRESIDENT
Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application from the Australian Manufacturing Workers’ Union (AMWU) under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of K & R Fabrications (W’Gong) Pty Ltd. The application was made due to the union's assertion that it had been genuinely attempting to reach an agreement with the employer but had been unsuccessful. The employer did not oppose the application, leading to the matter being determined on the papers without a formal hearing.

The primary legal issue before the Commission was whether the union had met the statutory requirements to proceed with a ballot for protected industrial action. This involved verifying that the union had genuinely attempted to negotiate with the employer and that the requisite notification period had elapsed. The Commission examined the statutory declaration provided by Gavin Bubb of the AMWU, which outlined the bargaining process and the union's efforts to reach an agreement with the employer.

The Commission found that the union had satisfied the conditions set forth in section 443(1) of the Fair Work Act, including demonstrating genuine efforts in bargaining and the completion of the required notification period. Given these findings, the Commission decided to grant the union's application for a ballot order, allowing the union to proceed with its proposed industrial action.

The Fair Work Commission issued an order in PR743826, permitting the AMWU to conduct a protected action ballot among the employees of K & R Fabrications (W’Gong) Pty Ltd. This decision was based on the union's fulfillment of the legal requirements and the employer's lack of opposition to the application. The order is effective as of the date of the decision, enabling the union to proceed with its planned industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established