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
(B2016/146)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 8 JULY 2016

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) (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 7 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 PR582554.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed protected action ballot of employees of McCain Foods (Aust) Pty Ltd was validly conducted. The dispute arose from the AMWU's intention to ballot its members employed by McCain Foods regarding protected action, specifically a strike, under the Fair Work Act 2009. The Federal Court of Australia was tasked with determining the validity of the ballot, given McCain Foods' contention that it did not employ any union members.

The central legal issue before the court was whether the AMWU could lawfully conduct a protected action ballot for its members employed by McCain Foods. This hinged on the interpretation of the term "employee" under the Fair Work Act and whether McCain Foods' employees were members of the AMWU. The court had to examine the ballot's procedural correctness, the eligibility of the employees to be balloted, and the compliance with the Act's requirements for such a ballot.

The court found that the AMWU had not provided sufficient evidence to demonstrate that any of McCain Foods' employees were members of the union. The AMWU failed to produce membership records or any other evidence linking McCain Foods' employees to the union. Consequently, the court ruled that the AMWU did not have the authority to conduct a protected action ballot for McCain Foods' employees. The court emphasised that the union must establish a clear connection between its members and the employees of the employer in question before initiating any protected action.

The court's decision was that the AMWU's proposed protected action ballot was invalid, as the union could not substantiate that any McCain Foods employees were its members. The court's ruling effectively precluded the AMWU from proceeding with the ballot, highlighting the importance of precise evidence in union-employer disputes under the Fair Work Act.

"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