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

[2022] FWC 2107

FAIR WORK COMMISSION

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

Nestlé Australia Ltd

(B2022/1197)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 9 AUGUST 2022

Proposed protected action ballot of employees of Nestlé Australia 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 Nestlé Australia Ltd (the Respondent).

On 9 August 2022, my Associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the declaration of Mr Barry Terzic 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 PR744620.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involves the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) as the applicant and Nestlé Australia Ltd as the respondent. The AMWU sought a protected action ballot order in relation to certain employees of Nestlé Australia Ltd, as per s.437 of the Fair Work Act 2009. The dispute arose from the union’s efforts to engage in protected action due to ongoing issues in bargaining with Nestlé Australia Ltd.

The central legal issue the Fair Work Commission had to address was whether the AMWU met the requirements under s.443(1) of the Fair Work Act to hold a protected action ballot. Specifically, the Commission had to determine if the union had genuinely attempted to reach an agreement with Nestlé Australia Ltd and if there was a notification time for the proposed agreement. The Commission also needed to consider the declaration of Mr Barry Terzic of the AMWU, which outlined the union’s bargaining steps and its ongoing efforts to reach an agreement with the respondent.

Upon reviewing the material, including Mr Terzic’s declaration, the Deputy President was satisfied that the AMWU had genuinely tried to reach an agreement with Nestlé Australia Ltd and that the notification time for the proposed agreement existed. The respondent did not object to the application, which influenced the decision to determine the matter on the papers without holding a hearing. Consequently, the Deputy President granted the AMWU’s application for a protected action ballot order.

In conclusion, the Fair Work Commission authorised the AMWU to conduct a protected action ballot for its members employed by Nestlé Australia Ltd, finding that the union had met the statutory requirements for such a ballot. This decision was based on the union’s declaration and efforts to negotiate with the employer, as well as the absence of objections from the respondent.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established