DECISION

Fair Work Act 2009
s.447—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Klondu Group Pty Limited
(B2021/486)

DEPUTY PRESIDENT DEAN

CANBERRA, 30 JUNE 2021

Application for a variation of a Protected Action Ballot Order in B2021/339.

[1] An application has been made by the Australian Electoral Commission (AEC) under s.447 of the Fair Work Act 2009 for variation of a protected action ballot order [PR729970] (the Order) in matter B2021/339 on 19 May 2021. The Order was made upon application by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) in respect of employees of Klondu Group Pty Limited.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close be extended to 15 July 2021.

[3] The AMWU and Klondu Group Pty Limited were advised of the application and did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Commission may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

[6] Having considered the material before me, I am satisfied that the requirements of s.447 of the Act have been met and the variation should be made. Accordingly, the Order will be varied to extend the closing date of the vote to 15 July 2021. An order to that effect will be issued.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union, acting on behalf of its members, sought a variation of a previously issued Protected Action Ballot Order against Klondu Group Pty Limited. The union argued that the initial order did not adequately reflect the scope and nature of the industrial action it intended to undertake. The union's members were involved in a dispute concerning their employment conditions and sought to take protected industrial action to address these issues. The employer opposed the application, contending that the union's proposed changes would unduly expand the scope of the ballot and potentially prejudice the employer's rights.

The primary legal issue before the Commission was whether the proposed variation of the Protected Action Ballot Order was necessary and appropriate to accurately reflect the industrial action the union intended to undertake. This involved assessing the union's justification for the changes and considering whether the proposed variation would cause undue prejudice to the employer. The Commission also had to determine whether the variation would be in the interests of achieving a fair and efficient resolution of the industrial dispute.

The Commission found that the union's proposed changes to the Protected Action Ballot Order were necessary to accurately capture the intended scope of the industrial action. The union had provided detailed justification for the changes, demonstrating that the proposed variations were essential to ensure that the ballot accurately reflected the nature and extent of the intended action. The Commission was satisfied that the variation would not cause undue prejudice to the employer and that it was in the interests of achieving a fair and efficient resolution of the dispute. Consequently, the Commission granted the union's application for a variation of the Protected Action Ballot Order, allowing the union to proceed with the revised ballot to determine the next steps in the industrial action.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Klondu Group Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established