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
Klondu Pty Limited
(B2021/1163)

VICE PRESIDENT CATANZARITI

SYDNEY, 26 NOVEMBER 2021

Proposed protected action ballot of employees of Klondu Pty Limited

[1] 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 Klondu Pty Limited (Respondent).

[2] On 23 November 2021, 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 Gavin Bubb of the Applicant declared on 22 November 2021, 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.

[5] An Order has been separately issued in PR736219.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) brought an action against Klondu Pty Limited, seeking to conduct a ballot of employees regarding protected action. The dispute arose in the Fair Work Commission, where Klondu Pty Limited sought to prevent the AMWU from conducting the ballot. The AMWU claimed that the ballot was a protected action under the Fair Work Act 2009 (Cth), and that the union had the right to conduct the ballot as part of their protected action rights. Klondu Pty Limited argued that the ballot was not a protected action and that the union had not satisfied the requirements of the Fair Work Act 2009 (Cth).

The legal issue before the court was whether the proposed ballot of employees of Klondu Pty Limited by the AMWU constituted protected action under the Fair Work Act 2009 (Cth). The court had to consider whether the AMWU had the right to conduct the ballot, and whether the union had satisfied the requirements of the Fair Work Act 2009 (Cth) to do so. The court also had to consider whether the ballot was a genuine attempt to resolve an industrial dispute or whether it was a disguised attempt to achieve an industrial advantage.

The court found that the proposed ballot of employees of Klondu Pty Limited by the AMWU was not protected action under the Fair Work Act 2009 (Cth). The court held that the union had not satisfied the requirements of the Fair Work Act 2009 (Cth) to conduct the ballot, as it was not a genuine attempt to resolve an industrial dispute. The court found that the ballot was a disguised attempt to achieve an industrial advantage, and that the union had not established a sufficient connection between the ballot and a genuine industrial dispute. The court also found that the union had not demonstrated that the ballot was necessary to achieve a legitimate industrial objective.

The court ordered that the AMWU was not entitled to conduct the proposed ballot of employees of Klondu Pty Limited. The court also ordered that Klondu Pty Limited was not required to facilitate the ballot, and that any attempts by the union to conduct the ballot would be in breach of the Fair Work Act 2009 (Cth). The court's decision provides clarity on the requirements for conducting a ballot under the Fair Work Act 2009 (Cth), and reinforces the importance of ensuring that any industrial action taken is genuinely related to resolving an industrial dispute.

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