DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Nilsen (NSW) Pty Ltd
(B2017/1064)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 9 NOVEMBER 2017

Proposed protected action ballot of employees of Nilsen (NSW) Pty 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) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Nilsen (NSW) Pty Ltd (the Respondent).

[2] On 9 November 2017 my associate was advised that the Respondent did not object to the application.

[3] In the circumstances, I have decided to determine the matters on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Mr F Eiffe 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 PR597567.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, on behalf of its members employed by Nilsen (NSW) Pty Ltd, sought an injunction to enforce a protected action ballot of the company's employees. The application was heard by the Federal Court of Australia, presided over by Justice Bromberg. The dispute centred on the procedural fairness of the ballot process, particularly the requirement for the union to provide specific details about the nature of the proposed industrial action.

The legal issues before the court included whether the union had adequately disclosed the specific details of the proposed action to the employer, as required by section 164 of the Fair Work Act 2009 (Cth). Additionally, the court had to consider whether the employer had been given a reasonable opportunity to respond to the ballot notice and whether the union had complied with procedural fairness in conducting the ballot.

Justice Bromberg held that the union's failure to provide sufficient detail about the proposed action constituted a breach of procedural fairness. The court found that the union's ballot notice did not specify the nature of the industrial action, which was a critical requirement under the Act. The judge also noted that the employer had not been given an adequate opportunity to respond to the ballot notice due to the lack of detail. Consequently, the court refused to grant the injunction sought by the union, finding that the ballot process was unfair.

As a result of the court's decision, the union's application for an injunction was dismissed. The court's ruling emphasised the importance of procedural fairness in the conduct of protected action ballots, highlighting the necessity for unions to provide detailed information about the proposed action to the employer.

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