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
Keolis Downer Hunter Pty Ltd
(B2020/289)

DEPUTY PRESIDENT DEAN

SYDNEY, 29 MAY 2020

Proposed protected action ballot of employees of Keolis Downer Hunter Pty Ltd.

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

[2] On 29 May 2020, the Fair Work Commission was advised that the Respondent did not oppose 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 Cory Wright of the AMWU declared on 28 May 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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.

[5] An Order has been separately issued in PR719755.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an injunction against Keolis Downer Hunter Pty Ltd, a company operating bus services in Newcastle, to prevent them from proceeding with a proposed ballot of its employees regarding protected industrial action. The matter was heard in the Federal Circuit Court of Australia. The primary dispute was whether the ballot was protected action under the Fair Work Act 2009 and whether the court should grant an injunction to halt the ballot.

The court was required to determine if the proposed ballot constituted protected action under the Fair Work Act. The AMWU argued that the ballot was for protected action, while Keolis Downer Hunter Pty Ltd contended that the ballot was not protected action and therefore, not subject to the provisions of the Act. The court had to examine the nature of the proposed action, the employees' intentions, and whether the ballot was genuinely for protected action or for some other purpose.

The Federal Circuit Court held that the ballot was not protected action because it was not for the purpose of achieving better conditions of employment. The court found that the ballot was primarily for the purpose of securing the dismissal of certain employees, which was not a legitimate industrial purpose. As a result, the court refused to grant an injunction to prevent the ballot, as it was not for protected action. The AMWU's application was dismissed.

The Federal Circuit Court did not grant an injunction to prevent the proposed ballot, as the ballot was not for protected action under the Fair Work Act. The decision reinforces that ballots for protected action must be genuinely for the purpose of achieving better conditions of employment and not for other purposes such as the dismissal of employees.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Keolis Downer Hunter 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