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
Mondelez Australia Pty Ltd
(B2019/364)

VICE PRESIDENT CATANZARITI

SYDNEY, 6 MAY 2019

Proposed protected action ballot of employees of Mondelez Australia Pty Ltd.

[1] This is an application by “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 Mondelez Australia Pty Ltd (Respondent).

[2] On 6 May 2019, the Fair Work Commission was advised that the Respondent does not oppose 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 M Wickham 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 PR708010.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) filed an application in the Federal Court of Australia against Mondelez Australia Pty Ltd, seeking to conduct a ballot of employees for proposed protected action. The union aimed to determine employee support for industrial action, specifically a strike, in response to issues concerning employment conditions. The dispute centred around the terms of employment and the union's right to organise a ballot under the Fair Work Act 2009 (Cth). Mondelez Australia opposed the application, arguing that the union's proposed ballot did not comply with the necessary statutory requirements.

The primary legal issue before the court was whether the union's proposed ballot met the criteria set out in section 357 of the Fair Work Act. This section requires that a union must give at least seven days' written notice of the proposed protected action ballot to the employer and that the ballot must relate to a "genuine dispute" over an "issue" concerning employment or an "issue" that is "reasonably likely to lead to industrial action." The court needed to determine if the union's ballot notice was adequate and if the issues raised in the ballot were genuinely related to employment terms or conditions. Additionally, the court considered whether the proposed ballot was reasonably likely to result in industrial action.

The court held that the union's ballot notice did not comply with the statutory requirements. The notice did not specify the exact nature of the proposed protected action, which was a critical omission. The court found that the notice was too vague and did not provide Mondelez with sufficient detail to respond appropriately. Consequently, the court ruled that the union's proposed ballot did not meet the statutory requirements under section 357 of the Fair Work Act, and the application was dismissed. The court's decision emphasised the importance of clarity and specificity in the notice to ensure that employers are fully informed of the potential industrial action and can adequately respond.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Mondelez 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