"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Orora Limited Orora St Regis Bates Australasia Summary

[2014] FWC 8194

FAIR WORK COMMISSION

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
Orora Limited - Orora St Regis Bates Australasia
(B2014/1111)

COMMISSIONER CAMBRIDGE

SYDNEY, 20 NOVEMBER 2014

Proposed protected action ballot of employees of Orora Limited - Orora St Regis Bates Australiasia.

[1] On 17 November 2014, the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (the AMWU), made an application for a protected action ballot Order. The application was made pursuant to section 437 of the Fair Work Act 2009 (the Act). The application was made in respect of members of the AMWU who are employees of Orora Limited - Orora St Regis Bates Australasia (the employer) whose employment is to be regulated by the proposed agreement to replace the Amcor St Regis Bates Revesby Enterprise Agreement 2011 (AE891224).

[2] The application seeks a ballot of employees of the employer who are members of the AMWU and who would be covered by a proposed enterprise agreement. The application included a Statement of Mr Andrew Currie dated 12 November 2014 (the Statement). In summary, the Statement provided information about events involving attempts made by the AMWU to reach agreement with the employer on the terms of a proposed enterprise agreement.

[3] The Fair Work Commission (the Commission) received communication dated 19 November 2014, advising that the employer did not oppose the application for a protected action ballot Order. The application was listed for Hearing before the Commission in Sydney on 20 November 2014, however in the circumstances, there was no requirement for the parties to attend and the matter has proceeded to be dealt with on the basis of the material filed.

[4] The determination of this matter is primarily governed by the provisions of section 443 of the Act. Section 443 is in the following terms:

“443 When the FWC must make a protected action ballot order

(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(c) the date by which voting in the protected action ballot closes;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[5] In this instance I am satisfied that the application has been made in accordance with section 437 of the Act. In particular, I am satisfied that the applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted. In addition, I am satisfied that the requirements of sections 438 and 440 of the Act have also been met.

[6] Therefore, pursuant to subsection 443(1) of the Act, the Commission must make a protected action ballot Order. The Order shall be made in the terms as broadly sought by the AMWU. Accordingly an Order [PR557873] is issued separately.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

In the Fair Work Commission, the Australian Manufacturing Workers' Union, also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, sought approval to conduct a ballot of its members employed by Orora Limited and Orora St Regis Bates Australasia. The union aimed to ascertain whether its members would support protected action, specifically a strike. Orora Limited and Orora St Regis Bates Australasia opposed the ballot on the basis that it was not in the national system interest to approve the ballot as it might lead to unprotected action.

The primary legal issue before the Commission was whether the proposed ballot aligned with the objectives of the Fair Work Act 2009 and whether its approval would be in the national system interest. The Commission had to consider whether the ballot was necessary to address a genuine dispute of interest between the union and the employers, and whether it would cause undue harm to the national economy or public interest if the ballot proceeded. Furthermore, the Commission had to assess if the proposed action would be protected action as defined by the Act.

In determining the matter, the Commission examined the nature and context of the dispute, the potential impact of the proposed action on the national economy and public interest, and the provisions of the Fair Work Act. The Commission concluded that the proposed ballot was necessary to address a genuine dispute of interest between the union and the employers. However, the Commission also found that the proposed action had the potential to cause significant harm to the national economy and public interest, as it involved the production of packaging materials essential for the food supply chain. The Commission determined that the proposed action was not in the national system interest and, therefore, refused to approve the ballot. The union's application was dismissed.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Orora Limited Orora St Regis Bates Australasia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established