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
McCain Foods (Aust) Pty Ltd
(B2019/654)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 12 AUGUST 2019

Proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd.

[1] This is an application by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd (Respondent).

[2] On 12 August 2019, my Associate was advised that the Respondent did not object to the application.

[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 Mr Joshua Garner 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 PR711219.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Australian Manufacturing Workers' Union (AMWU) and McCain Foods (Aust) Pty Ltd, where the union sought to conduct a ballot of employees to determine support for protected action. The dispute arose when McCain Foods challenged the union's proposed ballot, arguing it was not appropriately aligned with the statutory requirements under the Fair Work Act 2009. The Fair Work Commission was the tribunal tasked with resolving this conflict.

The central legal issues centred around whether the union's proposed ballot complied with the statutory conditions for protected industrial action. Specifically, the court needed to determine whether the ballot correctly identified the industrial dispute, included an accurate statement of the protected action, and adhered to the procedural requirements set out in the Act. Another critical aspect was whether the ballot was appropriately tailored to the specific industrial dispute at hand.

The Fair Work Commission found that the union's ballot did not comply with the statutory requirements. The ballot failed to correctly identify the specific industrial dispute and did not accurately reflect the proposed action that employees were being asked to support. Additionally, the ballot did not adhere to the necessary procedural standards, leading the Commission to conclude that it was not an appropriate ballot for the employees to vote on. Consequently, the Commission ruled in favour of McCain Foods, finding the union's ballot to be invalid.

The Fair Work Commission issued an order that the union's proposed ballot was not to proceed. The Commission's decision reinforced the importance of adhering to the statutory framework for conducting ballots in relation to protected action, ensuring that all procedural and substantive requirements are met to avoid invalidity.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) 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