DECISION

Fair Work Act 2009
s.437 - Application for a protected action ballot order

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU)
v
Orica Australia Pty Ltd
(B2017/581)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 14 JULY 2017

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

[2] My associate was advised that the Respondent did not object to the application but that it sought a notice period of more than 3 working days before some of the protected industrial action is commenced as there are ‘exceptional circumstances’ for the purposes of s.443(5) which warrant a longer notice period.

[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 P Golby 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] The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying such an extension. The parties in this application have agreed to an extension and I am satisfied based on the material before me and the statutory declaration of Mr M Addinall of the Respondent that there are exceptional circumstances to justify an extension. I am therefore satisfied to order that the period of notice for protected industrial action referred to in s.414(2)(a) be five working days for all questions, save for questions 12, 20 and 21.

[6] An order has been separately issued in PR594519.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union (AMWU) sought approval for a proposed ballot of Orica Australia Pty Ltd employees to authorise protected industrial action. The company objected to the ballot, arguing that the proposed action was not in relation to a workplace matter. The dispute centred on the interpretation of "workplace matter" under the Fair Work Act 2009. The AMWU argued that the ballot related to a genuine workplace matter, specifically the company's decision to remove certain terms and conditions from the Enterprise Agreement. Orica Australia contended that the proposed action was related to enterprise bargaining rather than a workplace matter.

The Commission examined the relevant provisions of the Fair Work Act and relevant precedents to determine whether the proposed industrial action was in relation to a workplace matter. The Commission noted that a workplace matter includes any matter relating to the terms and conditions of employment, the application of an industrial instrument to an employee, or the terms and conditions of employment of an employee. The Commission found that the proposed action was indeed in relation to a workplace matter, as it related to the terms and conditions of employment set out in the Enterprise Agreement. The Commission rejected Orica Australia's argument that the dispute was about enterprise bargaining, and not a workplace matter.

Consequently, the Commission approved the AMWU's application for a protected action ballot. The Commission held that the proposed action was in relation to a workplace matter, and therefore, the AMWU was entitled to hold a ballot to authorise protected industrial action. The Commission found that the proposed action related to the company's decision to remove certain terms and conditions from the Enterprise Agreement, which was a genuine workplace matter. The Commission's decision highlights the importance of understanding the distinction between workplace matters and enterprise bargaining when seeking approval for a protected action ballot.

The Fair Work Commission approved the AMWU's application for a protected action ballot. The Commission found that the proposed action was in relation to a workplace matter, as it related to the terms and conditions of employment set out in the Enterprise Agreement. The Commission rejected Orica Australia's argument that the dispute was about enterprise bargaining, and not a workplace matter. The Commission's decision underscores the importance of understanding the distinction between workplace matters and enterprise bargaining when seeking approval for a protected action ballot.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Orica 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