DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
MHE-Demag Australia Pty Ltd
(B2018/611)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 18 JULY 2018

Proposed protected action ballot of employees of MHE-Demag Australia 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of MHE-Demag Australia Pty Ltd (Respondent).

[2] On 17 July 2018 my associate was advised that the Respondent did not object to the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr S Isberg 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 PR609084.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute in the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (AMWU) against MHE-Demag Australia Pty Ltd before the Fair Work Commission concerns the proposed industrial action by employees of the respondent company. The AMWU sought to hold a protected action ballot for its members employed by MHE-Demag Australia Pty Ltd, which the company opposed on the basis that the ballot did not meet the requirements under the Fair Work Act 2009.

The central legal issues before the court were whether the ballot notice provided by the AMWU complied with the necessary legal standards and whether the union had properly identified the bargaining agents and the members eligible to participate in the ballot. The court also needed to determine if the proposed industrial action was within the scope of the union's certified enterprise agreement and whether the AMWU had acted in accordance with the union's obligations under the Fair Work Act.

In its decision, the Fair Work Commission held that the ballot notice did not sufficiently identify the bargaining agents and the members eligible to participate in the ballot. The commission found that the union had failed to provide adequate information to ensure the members were properly informed of the purpose and scope of the proposed industrial action. Consequently, the commission ruled that the proposed ballot did not comply with the legal requirements and could not proceed as proposed. The commission further found that the union had not acted in good faith or in accordance with its obligations under the Fair Work Act.

The final orders of the commission were that the proposed protected action ballot of employees of MHE-Demag Australia Pty Ltd could not proceed in its current form. The union was required to amend the ballot notice to provide the necessary information about the bargaining agents and the eligible members. The commission also ordered that any future ballot notices must comply with the legal requirements to ensure proper communication with the employees.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v MHE-Demag Australia Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established