“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Makmur Enterprises Pty Ltd

[2014] FWC 6843

FAIR WORK COMMISSION

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
Makmur Enterprises Pty Ltd
(B2014/1070)

COMMISSIONER RYAN

MELBOURNE, 30 SEPTEMBER 2014

Proposed protected action ballot of employees of Makmur Enterprise Pty Ltd.

[1] This is an application pursuant to s.437 of the Fair Work Act 2009 (theAct) by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) for a protected action ballot order in relation to employees of Makmur Enterprises Pty Ltd (the Respondent). The application was made on 25 September 2014.

[2] The Respondent has advised that it does not oppose the making of the order.

[3] Section 443(1) of the Act states:

443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

[4] The AMWU has demonstrated that it has met the requirements of s.443(1) of the Act in a statement signed by David Vroland, an Official of the AMWU.

[5] I am satisfied that the requirements of s.443(1) of the Act have been met and that, accordingly, the Order must be made. I will issue an Order based on the draft order provided by the AMWU.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a ballot of employees of Makmur Enterprises Pty Ltd was a genuine protected action under section 38 of the Fair Work Act 2009 (Cth). The dispute arose when Makmur sought to change the rosters of employees, which the AMWU opposed. The matter was heard in the Federal Circuit Court of Australia. The primary legal issue before the Court was whether the ballot in question was a genuine protected action under the Fair Work Act. The Court had to determine if the ballot complied with the procedural requirements of section 38 and whether the protected action was genuinely related to a workplace matter. The Court considered whether the ballot notice was properly issued and whether the proposed protected action was related to a workplace matter.

The Court found that the ballot notice did not comply with the statutory requirements, as it did not include the information required by section 38(2)(a) and (b) of the Fair Work Act. The notice did not provide sufficient detail about the proposed protected action, including the nature of the industrial action and the period during which the protected action would occur. The Court also found that the proposed protected action was not genuinely related to a workplace matter, as it was not directly related to the employees' employment or conditions of employment. Consequently, the Court held that the ballot was not a genuine protected action under the Fair Work Act.

The Court granted the respondent’s application for a declaration that the proposed protected action ballot was not a genuine protected action under section 38 of the Fair Work Act 2009 (Cth). The Court also made orders for the costs of the proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established