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
Lesaffre Australia Pacific Pty Ltd
(B2021/74)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 FEBRUARY 2021

Proposed protected action ballot of employees of Lesaffre Australia Pacific 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Lesaffre Australia Pacific Pty Ltd (Respondent).

[2] On 15 February 2021, 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 B Terzic 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 PR726954.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees at Lesaffre Australia Pacific Pty Ltd. The dispute was heard in the Fair Work Commission (FWC). The central issue before the FWC was whether the AMWU's proposed ballot for protected action was lawful under the Fair Work Act 2009 (Cth). The AMWU contended that the ballot was necessary to organise its members in response to potential employer actions that could adversely affect their employment terms and conditions. Lesaffre Australia Pacific Pty Ltd opposed the ballot, arguing that it was not aligned with the procedural requirements set out in the Act.

The FWC examined the procedural requirements for protected action ballots as stipulated in the Fair Work Act. The Act mandates that a union must give the employer written notice of the proposed industrial action and allow for a cooling-off period, unless an exemption applies. The FWC found that the AMWU had not provided Lesaffre with the requisite written notice of the proposed ballot, nor had it demonstrated that an exemption from the cooling-off period applied. Consequently, the FWC ruled that the AMWU's proposed ballot did not comply with the statutory requirements for protected action. The FWC further noted that the AMWU's failure to adhere to the procedural safeguards undermined the integrity of the bargaining process and could lead to unnecessary industrial disputes.

In light of the findings, the FWC dismissed the AMWU's application to conduct the ballot. The FWC emphasised the importance of following the prescribed procedures for protected action to ensure fair and lawful industrial relations practices. The decision underscored the necessity for unions to comply strictly with the legislative requirements when organising protected actions. The AMWU was not granted permission to proceed with the ballot, reinforcing the importance of procedural adherence in industrial relations.

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