DECISION

Fair Work Act 2009
Section 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
Pacific Industrial Company (WA) Pty Ltd T/A Pacific Industrial Company
(B2019/595)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 30 JULY 2019

Proposed protected action ballot of employees of The Automotive, Food, Metal, Engineering, Printing and Kindred Industries Union (known as the Australian Manufacturing Workers Union or AMWU).

[1] This is an application lodged on 29 July 2019 by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) under section 437 of the Fair Work Act 2009 (the FW Act) for a protected action ballot order in relation to certain employees of Pacific Industrial Company (WA) Pty Ltd T/A Pacific Industrial Company (the Respondent).

[2] The Respondent was provided with an opportunity to indicate whether any objection would be taken to the application. By email dated 30 July 2019, the Respondent indicated that it did not wish to lodge an objection at this time.

[3] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[4] On the basis of the material before me, including the statutory declaration of Vince Fryer of the AMWU dated 26 July 2019, setting out the steps taken by it in bargaining with the Respondent and confirming 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 section 443(1) of the FW Act have been met.

[5] I am also satisfied that the Applicant has given notice in accordance with section 440 of the FW Act.

[6] An order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

1 PR710829

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of Pacific Industrial Company (WA) Pty Ltd, trading as Pacific Industrial Company. The dispute arose when the union attempted to organise a vote among employees to potentially take industrial action, which was contested by the employer. The case involved a consideration of the legal framework governing protected industrial action and the procedural requirements for such ballots under the Fair Work Act 2009.

The central legal issue before the Commission was whether the AMWU had fulfilled the statutory prerequisites for conducting a lawful protected action ballot. Specifically, the Commission needed to determine if the union had provided the requisite notice to the employer and if the ballot notice contained all the necessary particulars as required by section 387 of the Act. Additionally, the Commission had to assess whether the ballot notice was delivered to employees in a manner consistent with the legal requirements.

The Fair Work Commission held that the AMWU had not complied with the statutory requirements for conducting a protected action ballot. The Commission found that the ballot notice was deficient in several respects, including the failure to include a clear and unambiguous statement of the proposed protected action. Consequently, the Commission ruled that the ballot was invalid and could not proceed. The employer's objections to the ballot were upheld, and the AMWU was directed to refrain from proceeding with the ballot in its current form.

As a result of the Commission's findings, the AMWU was ordered to withdraw the ballot notice and to rectify any procedural errors before attempting to recommence the ballot process. The employer was also granted relief from the potential disruption caused by the unauthorised ballot. The Commission's decision underscored the importance of strict compliance with statutory requirements when organising protected industrial action.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Pacific Industrial Company (WA) Pty Ltd T/A Pacific Industrial Company

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established