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
(B2021/365)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 28 MAY 2021

Proposed protected action ballot of employees of Lesaffre Australia Pacific Pty Ltd.

[1] This is an application by the Australian Manufacturing Workers’ Union (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 27 May 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 Barry 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 PR730222.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought an order from the Fair Work Commission (FWC) against Lesaffre Australia Pacific Pty Ltd to compel the company to conduct a protected action ballot of its employees. The AMWU, representing employees of Lesaffre Australia Pacific Pty Ltd, wanted to organise a ballot to gauge employee support for potential protected action, specifically a strike. Lesaffre, however, opposed the ballot on the basis that the AMWU did not have sufficient support from employees as required by section 315 of the Fair Work Act 2009 (Cth). The FWC was required to determine whether the AMWU had established a sufficient basis to conduct the ballot. The central issue was whether the AMWU could demonstrate that at least forty percent of the employees eligible to vote in the proposed bargaining area supported the protected action and the proposed ballot.

The FWC held that the AMWU had provided sufficient evidence to establish that at least forty percent of employees supported the proposed action and ballot. The FWC noted that the AMWU had submitted signed authorisation forms from forty-three of the fifty-three employees eligible to vote, which satisfied the requirement under the Act. Lesaffre had not challenged the validity of the authorisation forms, and therefore, the FWC was satisfied that the AMWU had met the threshold required to proceed with the ballot. The FWC concluded that the AMWU had made out its case, and it ordered Lesaffre to conduct the ballot within fourteen days. The decision underscored the importance of following the statutory requirements for protected action ballots and the evidentiary standards that unions must meet to proceed with such actions.

“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