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
(B2019/133)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 19 FEBRUARY 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 18 February 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 Barry Terzic 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 PR705083.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers' Union, against O-I Operations (Australia) Pty Ltd, the Federal Court was tasked with deciding whether the employer had complied with the Fair Work Act 2009. The AMWU sought to conduct a ballot of employees for protected industrial action, which the employer contested on the grounds that the union had failed to provide sufficient information for the ballot. The employer argued that the union had not adequately outlined the nature and duration of the proposed action, which was necessary to ensure employees were fully informed and able to make an informed decision.

The central legal issue before the court was whether the union had fulfilled its obligations under section 305-5 of the Fair Work Act to provide employees with sufficient information before conducting a ballot. The court had to determine if the union's ballot papers and accompanying materials adequately informed employees about the specific aspects of the proposed action, including its nature, duration, and potential impact on the workforce. Additionally, the court needed to assess whether the employer's objections to the ballot were justified.

The court found that the union had not provided sufficient information to the employees for the ballot to be valid. The union's materials were deemed insufficient as they did not clearly outline the specifics of the proposed action, including the duration and the nature of the strike or stoppage. The court emphasised that the onus was on the union to ensure that employees had all necessary information to make an informed decision about participating in the industrial action. Consequently, the court ruled in favour of the employer, stating that the union's ballot did not comply with the statutory requirements. The court ordered that the proposed ballot could not proceed until the union provided the necessary information to the employees.

The court's decision was definitive in its requirement for clarity and completeness in the information provided to employees regarding proposed industrial action. The ruling underscored the importance of the union's duty to ensure employees are fully informed to make a truly informed decision about participating in such 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