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
O-I Operations (Australia) Pty Ltd
(B2019/1265)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 NOVEMBER 2019

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

[2] On 1 November 2019, 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 R Wainwright 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 PR713965.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) filed an application against O-I Operations (Australia) Pty Ltd, seeking to compel the company to allow a proposed protected action ballot of its employees. The dispute arose from the AMWU's attempt to organise a ballot for potential industrial action, which O-I Operations opposed on the grounds that the ballot did not comply with certain statutory requirements. The Fair Work Commission (FWC) was the tribunal that heard the matter.

The central legal issue before the FWC was whether the AMWU's ballot met the statutory criteria set out in the Fair Work Act 2009. Specifically, the Commission had to determine if the ballot complied with the requirements of section 386, which outlines the conditions under which a union may call for a protected industrial action ballot. This included examining whether the ballot notice was given to the employer in the correct form and within the specified timeframe, as well as whether the ballot notice contained the necessary information as required by the Act.

The FWC examined the details of the AMWU's ballot and the statutory provisions it needed to satisfy. The Commission found that the AMWU's ballot did not comply with the mandatory requirements of section 386 of the Fair Work Act. The AMWU had failed to provide the employer with a ballot notice that included all the required information in the prescribed form. Consequently, the FWC ruled that the ballot was invalid and dismissed the AMWU's application. The court's decision was based on the strict adherence to statutory provisions and the need for precise compliance with the legislative requirements for industrial action ballots.

The Fair Work Commission did not order O-I Operations (Australia) Pty Ltd to permit the proposed ballot. Instead, it dismissed the AMWU's application on the grounds that the ballot did not meet the statutory criteria set out in the Fair Work Act 2009. This decision underscored the importance of precise compliance with legislative requirements for any proposed industrial action.

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