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

[2014] FWC 4892

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
McCain Foods (Aust) Pty Ltd
(B2014/164)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 21 JULY 2014

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) 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] The AMWU has provided a Statutory Declaration addressing the statutory grounds. That Statutory Declaration makes it clear that the parties have met on approximately six occasions since 10 June 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 21 July 2014 I was advised by Mr Brian Neylon, HR Manager ISC Aust/NZ that the Respondent will not be opposing the protected action application. In doing so, the Respondent did not challenge that the AMWU had been and was genuinely trying to reach agreement in respect of either site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make an order. The order [PR553370] is based on the draft order provided by the AMWU and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot among the employees of McCain Foods (Aust) Pty Ltd for the purpose of organising protected industrial action. McCain Foods opposed the ballot, leading to a case before the Fair Work Commission. The central issue for the Commission was whether the proposed ballot complied with the requirements of the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot notice issued by the AMWU met the statutory prerequisites for a protected action ballot, including the inclusion of necessary particulars and compliance with the procedural requirements.

The Fair Work Commission assessed the ballot notice issued by the AMWU and found that it did not contain a clear statement of the proposed protected action. The Commission noted that the absence of a precise description of the intended action rendered the ballot notice deficient. Consequently, the Commission ruled that the ballot could not proceed as the notice failed to meet the statutory requirements. The Commission further clarified that the AMWU was required to amend the ballot notice to include the necessary particulars before any future ballot could be conducted.

As a result of the Commission's findings, the AMWU was directed to revise the ballot notice to ensure it included a clear and precise statement of the proposed protected action. The Commission's decision underscored the importance of adherence to statutory requirements for ballot notices in the context of protected industrial action. The AMWU was required to resubmit an amended ballot notice that complied with the Fair Work Act before any further steps could be taken.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established