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
Orora Packaging Australia Pty Ltd
(B2019/664)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 15 AUGUST 2019

Proposed protected action ballot of employees of Orora Packaging 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 Orora Packaging Australia Pty Ltd (Respondent).

[2] On 15 August 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 Raoul Wainwright 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 PR711364.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the case of Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, known as the Australian Manufacturing Workers’ Union (AMWU), the respondents sought to conduct a ballot of employees of Orora Packaging Australia Pty Ltd in relation to proposed industrial action. The application was brought before the Federal Court of Australia. The primary dispute centred on whether the AMWU had the right to conduct a ballot for the proposed protected action, considering the company’s application to restrain such action under the Fair Work Act 2009.

The court was tasked with determining whether the AMWU had the necessary authorisation to conduct the ballot as per the provisions of the Fair Work Act. It had to consider whether the AMWU had provided the requisite notice and information to Orora, as required by the Act. Additionally, the court had to assess whether the proposed action was protected action under the Act, and whether the AMWU had met the specific criteria for conducting such a ballot.

The Federal Court found that the AMWU had not complied with the notice and information requirements stipulated by the Fair Work Act. The court held that the union’s failure to provide Orora with the necessary details about the proposed action rendered the ballot unlawful. Consequently, the court granted the company's application to restrain the AMWU from conducting the ballot. The court also noted that, despite the proposed action potentially qualifying as protected action, the failure to adhere to the statutory requirements invalidated the ballot.

As a result of the court’s decision, the AMWU was restrained from proceeding with the proposed ballot of Orora’s employees. This outcome emphasised the importance of strict compliance with the procedural requirements set out in the Fair Work Act when unions seek to conduct ballots for industrial action.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Orora Packaging 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