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
(B2019/183)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MARCH 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 5 March 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 S Franklin 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 PR705573.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged a claim against O-I Operations (Australia) Pty Ltd in the Fair Work Commission, concerning a proposed protected action ballot by employees of O-I. The AMWU sought an order for the employer to facilitate a ballot of its employees to gauge support for potential industrial action. The dispute arose from the employer's refusal to allow the AMWU to conduct the ballot among its workforce. The AMWU argued that this refusal was unjust and contrary to the principles enshrined in the Fair Work Act 2009 (Cth). The employer, on the other hand, contended that the AMWU did not have the requisite support to conduct a lawful ballot and that facilitating the ballot would infringe on its proprietary rights.

The central legal issue before the Commission was whether the AMWU had the necessary support of at least 40% of the employees to conduct a lawful ballot for protected action. The Commission had to determine the validity of the AMWU's claim and whether the employer was justified in its refusal to facilitate the ballot. The AMWU needed to demonstrate that it had the requisite support among the employees, while the employer needed to substantiate its claim that the AMWU did not meet the required threshold for conducting a ballot. The Commission also needed to consider whether the employer's refusal to facilitate the ballot was reasonable and in accordance with the provisions of the Fair Work Act.

After considering the evidence and submissions from both parties, the Commission found that the AMWU had not provided sufficient evidence to demonstrate that it had the support of at least 40% of the employees to conduct a lawful ballot. The Commission held that the employer's refusal to facilitate the ballot was justified and that the AMWU did not have the requisite support among the employees. The Commission also noted that the employer's proprietary interests were not infringed by its refusal to facilitate the ballot, as the employer was not required to provide resources or assistance for the conduct of the ballot. Consequently, the Commission dismissed the AMWU's claim.

The Fair Work Commission dismissed the AMWU's claim and ordered that the AMWU pay O-I Operations (Australia) Pty Ltd's costs of the application. This decision underscores the importance of employers ensuring that any refusal to facilitate a ballot for protected action is based on a valid and reasonable assessment of the requisite employee support, and that the employer's proprietary interests are not infringed in the process. The decision also highlights the need for unions to thoroughly substantiate their claims and provide sufficient evidence to demonstrate that they have the requisite support among the employees before seeking to conduct a ballot for 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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established