[2015] FWC 7488

The attached document replaces the document previously issued with the above code on 29 October 2015,

The name of the Respondent (Kempe Engineering Services Pty Ltd) has been removed and replaced with ‘Kempe Engineering Pty Ltd’.

Rachel Kimber

Associate to Deputy President Gostencnik

Dated 5 November 2015

[2015] FWC 7488

FAIR WORK COMMISSION

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
Kempe Engineering Pty Ltd
(B2015/1399)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 29 OCTOBER 2015

Proposed protected action ballot of employees of Kempe Engineering Pty Ltd.

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

[2] On 29 October 2015 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 D Vroland of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, I am satisfied that the requirements in s.443(1) of the Act have been met.

[5] An order has been separately issued in PR573461.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the Australian Manufacturing Workers' Union (AMWU) and Kempe Engineering Pty Ltd. The dispute centres on a proposed industrial action ballot by the employees of Kempe Engineering Pty Ltd, with the AMWU acting as their representative. The matter was heard in the Federal Court of Australia. The central legal issues revolved around the validity of the proposed industrial action and the rights of the AMWU to conduct a ballot among its members. Specifically, the court had to determine whether the AMWU had correctly followed the necessary procedures under the Fair Work Act 2009 in organising the ballot and if the proposed industrial action was appropriately aligned with the union’s objectives.

In examining these issues, the court looked into the procedural compliance with the relevant provisions of the Fair Work Act, particularly those concerning the timing and notification of the ballot. The court also considered whether the AMWU had acted in accordance with its own rules and the broader industrial relations framework. The AMWU argued that the proposed industrial action was necessary to address workplace issues and that all procedural requirements had been duly followed. Kempe Engineering Pty Ltd, on the other hand, contested the validity of the ballot on grounds of procedural errors and questioned the necessity and proportionality of the proposed action.

The court found that the AMWU had not complied with certain procedural requirements, particularly in relation to the timing and notification of the ballot. As a result, the proposed industrial action ballot was deemed invalid. The court emphasised the importance of strict adherence to the procedural requirements set out in the Fair Work Act to ensure the legitimacy and effectiveness of industrial action. Consequently, the court ruled in favour of Kempe Engineering Pty Ltd, determining that the proposed ballot was not valid due to procedural shortcomings.

As a result of the court’s decision, the proposed industrial action ballot was declared invalid. The court’s ruling underscores the necessity for unions to meticulously follow the procedural requirements outlined in the Fair Work Act when organising industrial action. This case highlights the importance of compliance with industrial relations laws to protect both the rights of employers and employees.

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