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

[2022] FWC 2684

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

(B2022/1514)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 6 OCTOBER 2022

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

This is an application by the "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (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).

On 6 October 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Raoul Wainwright 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

An order has been separately issued in PR746532.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU) has applied to the Fair Work Commission (FWC) for an order permitting a protected action ballot in relation to certain employees of McCain Foods (Aust) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009 and was brought on the papers as the respondent did not object to the application. The matter concerns a proposed protected action ballot for employees of McCain Foods (Aust) Pty Ltd.

The central issue before the FWC was whether the AMWU had genuinely tried to reach agreement with McCain Foods (Aust) Pty Ltd, and if the requirements under section 443(1) of the Fair Work Act 2009 had been satisfied. The AMWU submitted a declaration by Mr Raoul Wainwright, detailing the bargaining process with McCain Foods (Aust) Pty Ltd and asserting that it had genuinely been trying to reach an agreement. The FWC had to assess the evidence and determine if the AMWU had met the criteria for a protected action ballot.

The Deputy President concluded that there was a notification time in relation to the proposed agreement, and that the requirements in section 443(1) of the Act had been met. The Deputy President relied on the declaration of Mr Raoul Wainwright and the material before the FWC in reaching this decision. Consequently, the FWC decided to grant the AMWU's application for a protected action ballot order.

An order has been issued in PR746532, permitting the AMWU to proceed with the protected action ballot for the employees of McCain Foods (Aust) Pty Ltd. The Deputy President's decision was based on the evidence and material presented, and the conclusion that the AMWU had genuinely tried to reach an agreement and satisfied the requirements of the Fair Work Act 2009.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established