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

[2022] FWC 649

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

Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie Pty Ltd

(B2022/220)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 24 MARCH 2022

Proposed protected action ballot of employees of Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie 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 Nyrstar Port Pirie Pty Ltd T/A Nyrstar Port Pirie Pty Ltd (the Respondent).

On 23 March 2022, my Associate was advised that the Respondent objected to the orders in the terms sought. The Respondent gave reasons and proposed an alternative draft Order.

On 24 March 2022, my Associate was advised that the Applicant consented to the changes requested.

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 Steven McMillan 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 PR739642.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) applied to the Fair Work Commission for an order to allow its members employed by Nyrstar Port Pirie Pty Ltd to vote on whether to take protected action. This application was made under section 437 of the Fair Work Act 2009. Nyrstar Port Pirie Pty Ltd objected to the application but later agreed to the terms proposed by AMWU, leading to the matter being determined by the Deputy President without a hearing.

The central legal issue before the Deputy President was whether the AMWU had met the criteria for holding a protected action ballot as outlined in the Fair Work Act. Specifically, the court needed to determine if there was a notification time in relation to the proposed agreement, and if AMWU had genuinely attempted to reach an agreement with Nyrstar Port Pirie Pty Ltd. The declaration by Mr Steven McMillan of the AMWU, which outlined the union's bargaining efforts with the company, was a key piece of evidence in this regard.

The Deputy President concluded that the AMWU had indeed met the statutory requirements. The declaration provided by Mr McMillan demonstrated that AMWU had been genuinely attempting to reach an agreement with Nyrstar Port Pirie Pty Ltd. Additionally, the Deputy President found that a notification time in relation to the proposed agreement existed. Consequently, the Deputy President granted the AMWU's application for a protected action ballot order. A separate order was issued in PR739642, formalising the decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established