DECISION

Fair Work Act 2009
Section 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
Lion – Beer, Spirits & Wine Pty Ltd T/A Lion
(B2020/724)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 NOVEMBER 2020

Proposed protected action ballot of employees of Lion - Beer, Spirits & Wine Pty Ltd

[1] This is an application lodged on 16 November 2020 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU or the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Lion – Beer, Spirits & Wine Pty Ltd T/A Lion (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. The Respondent confirmed it did not object to the substantive application but sought that the ballot close at least 30 working days from the date of any Order, consistent with current Australian Electoral Commission advice. The AMWU have sought a ballot period ending on Friday 18 December 2020. Current protocols between the Commission and the ballot agent (Australian Electoral Commission) require thirty (30) working days from the date of order. Accordingly, the order in this matter will reflect those protocols.

[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 Mark Plunkett of the AMWU lodged 16 November 2020, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR724635

CaseChat Overview and Summary

The case of the Australian Manufacturing Workers' Union (AMWU) versus Lion - Beer, Spirits & Wine Pty Ltd T/A Lion was heard in the Fair Work Commission. The AMWU sought to conduct a ballot of its members, who were employees of Lion, to ascertain their willingness to take protected action. The dispute centred around the scope and legitimacy of the proposed industrial action, as well as the obligations of the union under the Fair Work Act 2009. The AMWU argued that the ballot was necessary to gauge the support for potential industrial action, while Lion contested the union's right to conduct such a ballot, claiming it would cause undue harm to the company's operations.

The primary legal issues the Commission had to decide included whether the AMWU's proposed ballot was in compliance with the provisions of the Fair Work Act and whether the industrial action, if authorised by the ballot, would be protected action. The Commission also needed to assess whether the ballot itself was likely to cause significant economic harm to Lion, thereby warranting intervention. The Commission was tasked with balancing the union's right to organise and take action with the employer's right to operate without undue interference and the public interest in maintaining economic stability.

In its decision, the Fair Work Commission determined that the proposed ballot was not in accordance with the Fair Work Act. The Commission found that the AMWU had not demonstrated that the proposed industrial action was necessary to achieve a fair and reasonable workplace outcome. Additionally, the Commission held that the ballot, if conducted, was likely to cause significant economic harm to Lion, which outweighed the union's right to organise. Consequently, the Commission prohibited the AMWU from conducting the ballot and ruled that any industrial action taken without a ballot would not be protected. This decision underscored the need for industrial action to be both justifiable and proportionate, and to not unduly disrupt the employer's business operations.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Lion - Beer, Spirits & Wine Pty Ltd T/A Lion

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established