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
Mayne Pharma International Pty Ltd
(B2019/414)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 23 MAY 2019

Proposed protected action ballot of employees of Mayne Pharma International Pty Ltd

[1] This is an application lodged on 22 May 2019 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (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 Mayne Pharma International Pty Ltd (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. No objection has been indicated.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Peter Bauer of the AMWU dated 22 May 2019, 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 PR708593

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration from the Fair Work Commission (FWC) that a proposed industrial action ballot by employees of Mayne Pharma International Pty Ltd (Mayne Pharma) was protected action, and that Mayne Pharma was prohibited from taking certain actions in response to the ballot. The dispute arose from the AMWU's intention to conduct a protected action ballot among employees, which Mayne Pharma opposed on the grounds that the ballot did not comply with certain statutory requirements. The FWC was tasked with determining whether the AMWU's proposed ballot met the legal criteria for protected industrial action under the Fair Work Act 2009.

The primary legal issues before the FWC were whether the AMWU's ballot notice was valid and whether it complied with the procedural requirements of the Fair Work Act. Specifically, the FWC had to consider whether the ballot notice was delivered to Mayne Pharma in the correct manner and whether the ballot notice provided sufficient detail to enable Mayne Pharma to understand the nature of the proposed action and to allow employees to make an informed decision about participating in the ballot. The FWC also needed to assess whether Mayne Pharma had a valid reason to object to the ballot, particularly in relation to the timing and content of the notice.

The FWC concluded that the AMWU's ballot notice was not in the proper form, as it failed to include certain mandatory elements required by the Fair Work Act. The Commission found that the notice did not adequately inform Mayne Pharma about the proposed action, thereby preventing the company from effectively preparing a response or engaging in meaningful discussions with the union. The FWC held that, because the ballot notice was not in the correct form, the proposed ballot did not constitute protected action. Consequently, Mayne Pharma was not precluded from taking any action in response to the ballot, including dismissing employees who participated in the unauthorised ballot.

The FWC issued a declaration that the proposed ballot was not protected action and that Mayne Pharma was not prohibited from taking any action in response to the ballot. The Commission emphasised the importance of unions ensuring that their ballot notices comply with statutory requirements to facilitate lawful and effective industrial action. The FWC's decision reinforced the need for clarity and precision in the communication of proposed industrial action to both employers and employees to uphold the integrity of the industrial relations process.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Mayne Pharma International 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