“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd T/A McCain Summary

[2022] FWC 2999

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 T/A McCain

(B2022/1700)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 11 NOVEMBER 2022

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

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 T/A McCain (Respondent).

On 11 November 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 Andrew Bonello 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 PR747852.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission considered an application by the Australian Manufacturing Workers’ Union (AMWU) to conduct a protected action ballot for employees of McCain Foods (Aust) Pty Ltd T/A McCain. The application was made under section 437 of the Fair Work Act 2009, seeking approval for the ballot in relation to certain employees of the respondent. The respondent, McCain Foods, did not object to the application, leading the Deputy President to determine the matter based on the submitted documentation.

The primary legal issues involved in the application were whether the union had complied with the notification requirements and the genuineness of the union’s efforts to reach an agreement with the employer. The union needed to demonstrate that it had fulfilled the notification period stipulated in the Fair Work Act and had genuinely attempted to negotiate a resolution with the employer. The court examined the declaration provided by Mr Andrew Bonello of the AMWU, which outlined the union's bargaining process and efforts to reach an agreement with the employer.

In its reasoning, the Deputy President found that the union had indeed met the notification requirements and had been genuinely attempting to reach an agreement with the employer. The evidence presented in Mr Bonello’s declaration showed the union's adherence to the necessary procedures and its commitment to good faith negotiations. Consequently, the Deputy President determined that the union had satisfied the conditions for a protected action ballot under section 443(1) of the Fair Work Act.

The court issued an order approving the protected action ballot, as requested by the AMWU. This decision enabled the union to proceed with the ballot to determine the employees' stance on the proposed agreement. The specific order was issued in PR747852.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v McCain Foods (Aust) Pty Ltd T/A McCain

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established