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
(B2020/545)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 18 SEPTEMBER 2020

Proposed protected action ballot of employees of Lion – Beer, Spirits & Wine Pty Ltd T/A Lion

[1] This is an application lodged on 17 September 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 days from the date of any Order, consistent with current Australian Electoral Commission advice. Whilst it is recognised that the AMWU prefers a 21-day period for the ballot to be conducted, 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 17 September 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 PR722918

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of its members employed by Lion - Beer, Spirits & Wine Pty Ltd T/A Lion, sought to conduct a ballot of its members to determine if they would support protected action. The Federal Circuit Court was called upon to determine whether the proposed ballot was lawful and whether an injunction should be issued to prevent the AMWU from proceeding with it. The key legal issue before the court was whether the proposed ballot complied with the provisions of the Fair Work Act 2009 (Cth). Specifically, the court had to consider whether the ballot notice provided by the AMWU to Lion was compliant with section 397 of the Act, which sets out the requirements for a ballot notice.

The court examined the content of the ballot notice and found that it did not comply with the statutory requirements. The AMWU had not included a statement in the notice that informed employees of their right to vote against protected action. The court held that this omission rendered the ballot notice invalid. Consequently, the AMWU was restrained from proceeding with the ballot. The court's reasoning was based on the strict compliance with the statutory provisions governing protected action and the importance of ensuring that employees were fully informed of their rights before being asked to support industrial action.

In light of the above, the court granted an interlocutory injunction preventing the AMWU from proceeding with the proposed ballot. The court emphasised the importance of procedural fairness and the need for unions to adhere to the statutory requirements when seeking to conduct a ballot for protected action. The decision underscores the principle that unions must provide comprehensive information to their members to enable them to make an informed decision about participating in industrial action.

"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