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
Nestle Australia Ltd
(B2020/755)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 NOVEMBER 2020

Proposed protected action ballot of employees of Nestle Australia Ltd.

[1] 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 Nestle Australia Ltd (Respondent).

[2] On 27 November 2020, my Associate was advised that the Respondent did not object to 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 declaration of Mr J Gardner 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 PR724963.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed protected action ballot of employees of Nestle Australia Ltd was lawful. The Federal Court was tasked with determining whether the proposed ballot, which sought to authorise industrial action, complied with the requirements of the Fair Work Act 2009 (Cth). The legal issues centred on whether the ballot complied with the notice requirements under the Act, particularly in relation to the timing and content of the notice provided to the employer.

The court examined whether the AMWU had provided adequate notice of the protected action ballot as required by section 318 of the Fair Work Act. The Act stipulates that protected action notice must be in writing, given to the employer at least 28 days before the ballot and include certain particulars such as the proposed action and the duration of the industrial action. The court assessed whether the AMWU's notice met these statutory criteria. The employer argued that the notice did not comply because it was not received until less than 28 days before the ballot, and the content was deemed insufficient.

In ruling on the matter, the court found that the AMWU had not provided the required notice as outlined in the Act. The notice was delivered less than 28 days before the ballot, and the content did not sufficiently detail the proposed action. Consequently, the court declared that the proposed protected action ballot was unlawful. The AMWU's application for a declaration that the ballot was lawful was dismissed, and the court ordered that the ballot could not proceed as planned.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established