DECISION

Fair Work Act 2009
s.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
McCain Foods (Aust) Pty Ltd
(B2016/711)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 JULY 2016

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

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

[2] On 14 July 2016 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 D Vroland of the Applicant setting out the steps taken by it in bargaining with the Respondent Company and that it has been, and is, genuinely trying to reach agreement with the Respondent Company, 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 PR582821.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) took legal action against McCain Foods (Aust) Pty Ltd in the Fair Work Commission. The union sought a declaration that a proposed protected action ballot of the employees of McCain Foods was protected action, which was lawful. The dispute arose from the union's proposal to conduct a ballot of employees to determine whether they supported industrial action, including a potential strike. McCain Foods contested the union's claim, arguing that the ballot was not protected action because it was not conducted in accordance with the Fair Work Act.

The central legal issue before the Commission was whether the proposed ballot constituted protected action under the Fair Work Act. The AMWU argued that the ballot was a preliminary step in the process of determining the employees' support for industrial action, which was protected action. McCain Foods contended that the ballot itself was not protected action because it did not involve any actual industrial action. The Commission had to determine whether the proposed ballot, as a step towards potential industrial action, qualified as protected action under the Act.

The Fair Work Commission found in favour of the AMWU, determining that the proposed ballot was indeed protected action. The Commission reasoned that the ballot was a necessary step in the process of determining the employees' support for industrial action, which was itself protected action. The Commission held that the Act protects not only the actual industrial action but also the process of determining whether to take such action. Therefore, the proposed ballot was protected action, and the union was entitled to conduct it without interference from McCain Foods.

The Commission's decision was that the proposed protected action ballot of employees of McCain Foods was protected action under the Fair Work Act. The Commission's ruling reinforced the protection afforded to unions in conducting preliminary steps towards potential industrial action, ensuring that employers cannot unreasonably interfere with the union's process of gauging employee support for such action.

"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