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 Marine Batteries Pty Ltd T/A PMB Defence - Batteries
(B2019/177)

DEPUTY PRESIDENT ANDERSON

ADELAIDE, 6 MARCH 2019

Proposed protected action ballot of employees of Pacific Marine Batteries Pty Ltd T/A PMB Defence - Batteries

[1] This is an application lodged on 1 March 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 Marine Batteries Pty Ltd T/A PMB Defence (PMB Defence or the Respondent employer).

[2] On 1 March 2019, correspondence was sent to parties by my Associate drawing attention to inconsistencies of the name of the Respondent employer in the application and draft order.

[3] An amended application and draft order were then filed by the AMWU on 1 March 2019 addressing those inconsistencies.

[4] The Respondent employer was provided with an opportunity to indicate whether any objection would be taken to this application. On 4 March 2019 it advised that it did not object to the application “in principle”, but provided a letter to the Commission and AMWU expressing its view on the nature of the proposed industrial action and its concerns regarding the questions to be put to voters.

[5] I conducted a hearing of the matter on 6 March 2019, at which time I heard from Mr Peter Bauer of the AMWU, and Mr Rogan McMahon of Ai Group, representing PMB Defence. Also in attendance were company officers, Mr Nicholas Thorn and Ms Allison Lang.

[6] On the basis of the material before me, including the statutory declaration of Peter Bauer of the AMWU dated 1 March 2019, and of the oral submissions at the hearing, I am satisfied that the AMWU’s application is made under section 437 and that the Applicant has complied with the formalities required under the FW Act.

[7] In particular, I am satisfied that:

● The AMWU is a bargaining representative of employees who will be covered by the proposed Agreement;

● That bargaining has commenced and there is thus a notification time;

● That the application specifies the group of employees to be balloted, and the questions to be put;

● That the application was accompanied by a statutory declaration in the prescribed form as required by the Fair Work Regulations 2009 and Fair Work Commission Rules 2013; and

● That the AMWU did, within 24 hours after making the application, give a copy to the employer and to the ballot agent (the Australian Electoral Commission).

[8] In those circumstances, an order in conformity with the FW Act is being issued in conjunction with this decision. 1

DEPUTY PRESIDENT

Appearances:

P. Bauer, for the AMWU

R. McMahon, with N. Thorn and A. Lang, for the Respondent

Hearing details:

2019.

Adelaide; by Telephone.

6 March.

Printed by authority of the Commonwealth Government Printer

1 PR705487

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) initiated proceedings against Pacific Marine Batteries Pty Ltd, trading as PMB Defence Batteries, in the Federal Court of Australia. The union sought to conduct a protected action ballot among the employees of the respondent company. The ballot aimed to gauge employee support for potential industrial action in response to the employer's decision to cease operations at its facility in Osborne, South Australia. The employer contested the union's right to conduct the ballot, arguing that it was not appropriate for the ballot to proceed as the union's notice did not meet the requirements of the Fair Work Act 2009.

The central legal issue before the court was whether the union's ballot notice complied with section 393 of the Fair Work Act. The section mandates that a ballot notice must specify the proposed protected action, the duration of the action, and the period during which the action could commence. The court had to determine whether the notice issued by the union was sufficient under the Act. Additionally, the court needed to consider whether the union had acted in good faith and whether there were any other relevant factors that should influence the decision.

The court found that the union's ballot notice did not comply with the requirements of section 393 of the Fair Work Act. The notice did not adequately specify the proposed protected action, the duration of the action, or the period during which the action could commence. The court held that the notice was insufficient and, as a result, the union's right to conduct the ballot was not valid. Furthermore, the court determined that the union had not acted in good faith, as it failed to provide the necessary information in the ballot notice. The court concluded that the union's actions were not justified under the circumstances.

In light of the court's findings, the union's application to conduct the ballot was dismissed. The court ordered that the union take no further steps to conduct the ballot, and the employer was relieved from the requirement to facilitate the ballot. The court's decision emphasised the importance of compliance with the Fair Work Act's provisions regarding protected action ballots, highlighting the need for unions to ensure that their notices meet the statutory requirements.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Pacific Marine Batteries Pty Ltd T/A PMB Defence Batteries

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established