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

[2018] FWC 2392

FAIR WORK COMMISSION

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)

Monadelphous Engineering Pty Ltd

(B2018/308)

Deputy President Gostencnik

MELBOURNE, 1 MAY 2018

Proposed protected action ballot of employees of Monadelphous Engineering 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 Monadelphous Engineering Pty Ltd (Respondent).

On 30 April 2018 my associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr K Scherf 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 PR606659.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, acting on behalf of employees of Monadelphous Engineering Pty Ltd, applied to the Federal Court for an order requiring the employer to facilitate a ballot of its employees in relation to proposed protected industrial action. The employer opposed the application on the basis that the proposed ballot was not in accordance with the provisions of the Fair Work Act 2009 (Cth). The Court was required to determine whether the proposed ballot complied with the Act and whether the employer was required to facilitate the ballot.

The Court considered whether the proposed ballot complied with section 370 of the Act, which sets out the requirements for a protected action ballot. The Court found that the ballot did not comply with the Act because it did not contain sufficient information to enable employees to make an informed choice about whether to vote in favour of the proposed action. The Court also considered whether the employer was required to facilitate the ballot under section 371 of the Act, which sets out the employer's obligations in relation to a protected action ballot. The Court found that the employer was not required to facilitate the ballot because it did not comply with the Act.

The Court dismissed the application and made no order in relation to the proposed ballot. The Court noted that the employer was not required to take any action in relation to the proposed ballot because it did not comply with the Act. The Court also noted that the employees were entitled to take protected industrial action in relation to the proposed ballot, but that they were not entitled to have the employer facilitate the ballot if it did not comply with the Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established