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

[2022] FWC 2558

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

OGS Australia Pty Ltd

(B2022/1405)

VICE PRESIDENT CATANZARITI

SYDNEY, 23 SEPTEMBER 2022

Proposed protected action ballot of employees of OGS 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of OGS Australia Pty Ltd (Respondent).

On 20 September 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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 statutory declaration of Daniel Hannan of the Applicant declared on 16 September 2022, 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 PR746146.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged an application with the Fair Work Commission (FWC) under section 437 of the Fair Work Act 2009 (Cth), seeking a protected action ballot order in relation to certain employees of OGS Australia Pty Ltd. The AMWU alleged that it had been genuinely attempting to reach an agreement with the respondent but was unable to do so. The respondent did not oppose the application, and the matter was determined on the papers without a hearing. The application was for a protected action ballot order in relation to the employees of OGS Australia Pty Ltd.

The legal issue before the FWC was whether the AMWU had met the requirements under section 443(1) of the Fair Work Act 2009, which stipulates the conditions that must be fulfilled for a union to conduct a protected action ballot. The FWC had to determine if the AMWU had provided adequate notice of the proposed agreement and if it had genuinely tried to reach an agreement with OGS Australia Pty Ltd. The court also needed to assess if the AMWU's application met the criteria for a protected action ballot order.

In its decision, the FWC found that the AMWU had met the requirements under section 443(1) of the Fair Work Act 2009. The FWC was satisfied that there was a notification time in relation to the proposed agreement and that the AMWU had genuinely attempted to reach an agreement with OGS Australia Pty Ltd. The FWC also noted that the respondent did not oppose the application, and the matter was determined on the papers without a hearing. The FWC concluded that the AMWU's application met the criteria for a protected action ballot order.

The FWC issued an order under section 437 of the Fair Work Act 2009, granting the AMWU's application for a protected action ballot order in relation to the employees of OGS Australia Pty Ltd. The AMWU was authorised to conduct a protected action ballot in accordance with the provisions of the Fair Work Act 2009. The respondent did not oppose the application, and the matter was resolved without the need for a hearing.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established