"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Mondelez Australia Pty Ltd T/A Cadbury Claremont

[2023] FWC 1672

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.459 - Application to extend the 30 day period in which industrial action is authorised by protected action ballot

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

Mondelez Australia Pty Ltd T/A Cadbury Claremont

(B2023/690)

COMMISSIONER JOHNS

MELBOURNE, 14 JULY 2023

Application to extend the 30 day period in relation to B2023/386 plus variation B2023/497

This matter concerns the declaration of the result of a protected action ballot held in matter B2023/386 (PR761504) and variation issued in B2023/497 (PR762559) and declared on 14 June 2023.

The "Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) has made an application pursuant to s.459(3) of the Fair Work Act 2009 (the Act) to extend the 30 day period in which industrial action is authorised by the relevant protected action ballot.

Section 459(3) of the Act provides as follows:

“(3) The FWC may extend the 30-day period referred to in subparagraph (1)(d)(i) by up to 30 days if:

(a) an applicant for the protected action ballot order applies to the FWC for the period to be extended; and

(b) the period has not previously been extended.”

The application made by the AMWU contends that each of the relevant requirements have been met and that the period should be extended by a further 30 days.

Mondelez Australia Pty Ltd T/A Cadbury Claremont (Respondent) objected to the application primarily on the basis that, it contended, the AMWU has been filing industrial notices under s.414 of the Act but then not engaging in the action contained in the notices. It further contended that where action has occurred it has not been exercised by a vast majority of members/employees. It opposed the extension because there has been no apparent enlivening of most protected action types (despite the notices).

Accordingly, I listed the matter for a mention/directions hearing on 14 July 2023.

In respect of an application for an extension (such as the one before me), I am not aware of any authority for the proposition that an extension should be denied because of the circumstances described by the Respondent. After being invited to do so the Respondent was unable to assist me by referring me to any such authority supporting its position.

In light of the same, I am satisfied that the relevant requirements of the Act have been met and that the application should be granted.

Accordingly, pursuant to section 459(3) of the Act, I order that the 30 day period for the commencement of protected industrial action for eligible AMWU members employed by Mondelez Australia Pty Ltd T/A Cadbury Claremont be extended by a further 30 days.

An order will be issued with this decision [PR764264].

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission (FWC) was asked to decide whether to extend the 30-day period for industrial action authorised by a protected action ballot, in a case between the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union (AMWU) and Mondelez Australia Pty Ltd T/A Cadbury Claremont. The AMWU sought an extension under section 459(3) of the Fair Work Act 2009, while Mondelez opposed the application, arguing that the union had not consistently engaged in the industrial action outlined in their industrial notices and that the action had not been supported by a majority of employees. The Commission listed the matter for a directions hearing to consider the application.

The central issue for the Commission to decide was whether the AMWU had met the statutory requirements to extend the 30-day period for industrial action, as outlined in section 459(3) of the Act. The Commission considered whether the union had applied for an extension and whether the period had not previously been extended. The Commission also evaluated Mondelez's argument that the union had not consistently engaged in the action outlined in their notices and whether this was a valid reason to deny the extension.

The Commission concluded that the AMWU had met the statutory requirements for an extension, as they had applied for the period to be extended and the period had not been previously extended. The Commission was not persuaded by Mondelez's argument that the union's inconsistent engagement in industrial action should prevent the extension. The Commission found no authority to support denying an extension on these grounds and was satisfied that the application should be granted.

The Commission ordered that the 30-day period for the commencement of protected industrial action for eligible AMWU members employed by Mondelez Australia Pty Ltd T/A Cadbury Claremont be extended by a further 30 days, in line with the statutory requirements of the Fair Work Act 2009. An order was issued with the decision, and the union's application was granted.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established