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

[2022] FWC 2155

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

Nissan Casting Australia Pty Ltd

(B2022/1219)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 15 AUGUST 2022

Proposed protected action ballot of employees of Nissan Casting Australia Pty 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 Nissan Casting Australia Pty Ltd (the Respondent).

On 12 August 2022, my Associate was advised by the Respondent’s lawyers that the Respondent objected to the proposed industrial action identified in question 12 of the draft order accompanying the application. The Respondent also sought an extension of the notice period required from 3 working days to 7 working days for the taking of the industrial action identified in questions 2, 3, 4, 5, 6, 7, 8, and 10 of the draft order. I determined a Mention should be conducted. Prior to the Mention, my Chambers received correspondence from the parties confirming that a consent position had been reached. On this basis, the Respondent advised that it withdrew its objections to the application and its request for 7 working days’ notice.

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 Andrew Bonello 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 PR744771.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Fair Work Commission was asked to decide on a matter brought by the Australian Manufacturing Workers' Union (AMWU) regarding a proposed protected action ballot for certain employees of Nissan Casting Australia Pty Ltd. The AMWU sought a protected action ballot order under section 437 of the Fair Work Act 2009. Nissan Casting Australia Pty Ltd initially objected to the proposed industrial action and sought an extended notice period for certain types of industrial action. However, before a hearing was scheduled, the parties reached a consent position, leading Nissan Casting Australia Pty Ltd to withdraw its objections and request for an extended notice period. The Deputy President, Clancy, decided to determine the matter based on the documentation provided, as no hearing was necessary. The Deputy President was satisfied that the AMWU had been genuinely trying to reach an agreement with Nissan Casting Australia Pty Ltd and that the notification time for the proposed agreement met the requirements of section 443(1) of the Act.

The primary legal issues in this case revolved around whether the AMWU was entitled to proceed with a protected action ballot and if the requirements under the Fair Work Act 2009 had been satisfied. Specifically, the court needed to determine whether the AMWU had met the criteria for a notification time in relation to the proposed agreement and if the conditions outlined in section 443(1) of the Act were fulfilled. Additionally, the court had to consider Nissan Casting Australia Pty Ltd’s objections to the proposed industrial action and its request for a longer notice period for specific types of industrial action. These issues were central to deciding whether the AMWU could proceed with its proposed industrial action without further delay or modification.

The Deputy President concluded that the AMWU had satisfied the requirements for a notification time and that the conditions of section 443(1) of the Act were met based on the material presented. The Deputy President noted that the AMWU had provided a declaration from Mr. Andrew Bonello detailing the steps taken in bargaining with Nissan Casting Australia Pty Ltd and confirming that the union had genuinely attempted to reach an agreement. With the Respondent's objections withdrawn and the consent position reached by the parties, the Deputy President determined the matter on the papers without the need for a hearing. The court also acknowledged that an order had been separately issued in PR744771. Consequently, the Deputy President granted the AMWU's application for a protected action ballot order.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established