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

[2022] FWC 2214

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

(B2022/1250)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 19 AUGUST 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 (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).

On 19 August 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 PR744986.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission heard an application by the Australian Manufacturing Workers' Union (AMWU) seeking a protected action ballot order in relation to certain employees of McCain Foods (Aust) Pty Ltd. The application was made under section 437 of the Fair Work Act 2009. The union's application was made in the context of ongoing negotiations between the AMWU and McCain Foods, with the union asserting that it had been genuinely trying to reach an agreement with the employer. The employer did not object to the application, and the matter proceeded on the papers without a hearing.

The primary legal issue before the Deputy President was whether the AMWU had met the requirements of section 443(1) of the Fair Work Act, which sets out the criteria for a protected action ballot. The union had to demonstrate that there was a notification time in relation to the proposed agreement, and that it had been genuinely attempting to reach an agreement with the employer. The Deputy President was required to consider the material provided by the union, including a declaration by Mr Raoul Wainwright, who attested to the union's efforts in bargaining with the employer.

After reviewing the material provided by the AMWU, the Deputy President determined that the union had satisfied the requirements of section 443(1) of the Fair Work Act. The Deputy President was satisfied that there was a notification time in relation to the proposed agreement and that the union had genuinely attempted to reach an agreement with the employer. Consequently, the Deputy President decided to grant the union's application for a protected action ballot order. The decision was made without a hearing, given that the employer did not object to the application.

In light of the Deputy President's decision, an order was issued in PR744986, permitting the AMWU to conduct a protected action ballot among the relevant employees of McCain Foods (Aust) Pty Ltd. The order allows the union to proceed with the ballot, subject to the conditions and procedures set out in 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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established