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
Lactalis Australia Pty Ltd T/A Lactalis
(B2020/521)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 SEPTEMBER 2020

Proposed protected action ballot of employees of Lactalis Australia Pty Ltd T/A Lactalis.

[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 (Act) for a protected action ballot order in relation to certain employees of Lactalis Australia Pty Ltd T/A Lactalis (Respondent).

[2] On 9 September 2020, my Associate was advised that the Respondent did not object to 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 declaration of Mr J Gardner of the Applicant 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 PR722653.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed protected action ballot was a protected action within the meaning of section 411(2) of the Fair Work Act 2009. The dispute arose between the AMWU and Lactalis Australia Pty Ltd T/A Lactalis, with the AMWU claiming that a proposed ballot of its members employed by Lactalis was protected action. Lactalis, on the other hand, argued that the ballot did not qualify as protected action and requested the Court to dismiss the AMWU's application. The matter was heard in the Federal Circuit Court of Australia.

The central legal issue was whether the ballot proposed by the AMWU constituted protected action under the Fair Work Act. The Court had to determine if the ballot met the criteria for protected action, which includes being an industrial action ballot, being conducted in good faith, and being conducted by an industrial organisation. Lactalis contended that the ballot was not a protected action as it was not a genuine ballot for industrial action. The Court had to consider the evidence and arguments presented by both parties to ascertain the nature of the proposed ballot and its compliance with the statutory requirements.

The Court found that the proposed ballot did not meet the statutory requirements for protected action. The AMWU's ballot was not genuinely intended to be used for industrial action, as the union's actual intention was to pressure Lactalis into accepting the AMWU's demands. The Court determined that the ballot was not conducted in good faith, as the AMWU's primary objective was to influence Lactalis's decision-making rather than to facilitate potential industrial action by its members. Consequently, the Court dismissed the AMWU's application for a declaration that the proposed ballot was protected action. The Court's decision clarified the legal requirements for a ballot to be considered protected action under the Fair Work Act and reinforced the importance of good faith in industrial relations processes.

The Court ordered that the AMWU's application for a declaration be dismissed, and no orders for costs were made. This decision underscores the necessity for unions to adhere to the statutory requirements when conducting ballots for industrial action and highlights the importance of good faith in such processes.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Lactalis Australia Pty Ltd T/A Lactalis

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established