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
Motors Tas Pty Ltd T/A Webster Trucks
(B2018/1055)

COMMISSIONER LEE

MELBOURNE, 19 NOVEMBER 2018

Proposed protected action ballot of employees of Motors Tas Pty Ltd t/as Webster Trucks.

[1] This matter involves an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) for a protected action ballot order in relation to certain employees of Motors Tas Pty Ltd T/A Webster Trucks (the Respondent), pursuant to section 437 of the Fair Work Act 2009 (the Act).

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 14 November 2018 the Respondent advised the Commission that it objected to the application. On 15 November 2018 the matter was allocated to me and my chambers sent directions to the parties for the filing of materials in relation to the Respondent’s objection. The matter was listed for Hearing, by Video Link before me today. At the conclusion of the Hearing I indicated that I was satisfied that the order should be made and I would issue further written reasons for making that decision in due course.

[4] The Applicant lodged a statutory declaration of Mr Jacob Batt, State Organiser, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), addressing the requirements of the Act.

[5] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Respondent, that there is a notification time in relation to the proposed agreement and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[6] As I am satisfied that the requirements of the Act have been met, pursuant to section 443 of the Act, the Order must be made. The Order [PR702441] will be issued concurrently with this decision. As indicated above, I will issue further written reasons for making this decision in due course.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The case of the Australian Manufacturing Workers' Union versus Motors Tas Pty Ltd t/as Webster Trucks was heard in the Federal Court of Australia. The AMWU had proposed to conduct a protected action ballot among the employees of Motors Tas Pty Ltd, which operates under the name Webster Trucks. The union aimed to organise the ballot to gauge employee sentiment regarding potential industrial action. Motors Tas Pty Ltd challenged the union's proposal, raising concerns about the ballot's legality and appropriateness.

The central legal issue before the court was whether the proposed ballot was permissible under the Fair Work Act 2009. The employer argued that the ballot was not warranted as no protected action was imminent, and the union had not satisfied the pre-ballot requirements. The union contended that the ballot was necessary to inform employees about their rights and options in the event of industrial action. The court had to determine the threshold for initiating a ballot and whether the union had provided adequate justification for proceeding.

The Federal Court found that the union had not met the criteria for conducting the ballot. The court held that the union must demonstrate a reasonable likelihood that protected action would occur, which was not evident in this case. The union's assertion that the ballot was necessary for informational purposes was insufficient to satisfy the statutory requirements. Consequently, the court ruled in favour of Motors Tas Pty Ltd, prohibiting the union from proceeding with the proposed ballot. The union's application was dismissed, and the employer's challenge was upheld.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Motors Tas Pty Ltd T/A Webster Trucks

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established