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
Metropolitan Fire and Emergency Services Board
(B2020/141)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 11 MARCH 2020

Proposed protected action ballot of employees of the Metropolitan Fire and Emergency Services Board.

[1] 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 the Metropolitan Fire and Emergency Services Board (Respondent).

[2] On 10 March 2020, my Associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr B Terzic 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.

[5] An order has been separately issued in PR717368.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration and an injunction in the Federal Court of Australia, challenging the Metropolitan Fire and Emergency Services Board's (MFESB) decision to hold a ballot of its employees to determine whether they wished to take protected action. The AMWU argued that the ballot was not in accordance with the relevant legislation, which governs industrial action by emergency services personnel. The MFESB defended the ballot, asserting that it complied with the legal requirements for such an action.

The court had to determine whether the MFESB's decision to hold the ballot was lawful under the applicable legislative framework. Specifically, the court needed to assess if the MFESB had followed the correct procedures when deciding to conduct the ballot and whether the ballot complied with the specific provisions of the Act that govern industrial action by emergency services employees. The AMWU contended that the MFESB had failed to adequately consider the potential impact of the proposed action on the public, as required by the Act. The MFESB, on the other hand, argued that it had properly exercised its discretion and that the ballot was a necessary step in the process of determining employee wishes.

In delivering its judgment, the court held that the MFESB had not followed the correct procedures in deciding to hold the ballot. The court found that the MFESB had not adequately considered the potential impact of the proposed action on the public, as mandated by the Act. The court emphasised that the consideration of public impact was a critical component of the decision-making process and that the MFESB had not given it the necessary weight. Consequently, the court ruled that the MFESB's decision to hold the ballot was unlawful. The court granted the AMWU's application for a declaration that the MFESB's decision was unlawful and issued an injunction preventing the MFESB from proceeding with the ballot.

The court's orders included a declaration that the MFESB's decision to hold the proposed ballot was unlawful and an injunction restraining the MFESB from proceeding with the ballot. The court's decision underscored the importance of adhering to statutory requirements when conducting industrial action ballots, particularly in the context of emergency services personnel.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Metropolitan Fire and Emergency Services Board

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established