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

[2010] FWA 3882

FAIR WORK AUSTRALIA

The attached document replaces the document previously issued with the above code on 21 May 2010.

DETAILS:

There was a misspelt word in paragraph 1, where the word ‘text’ now replaces the previously incorrect ‘test’.

Joel Davis

Associate to Commissioner Cambridge

Dated 26May 2010

[2010] FWA 3882

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
Pacific National Pty Ltd
(B2010/2967)

COMMISSIONER CAMBRIDGE

SYDNEY, 21 MAY 2010

Proposed protected action ballot by employees of Pacific National (NSW) Pty Ltd.

[1] The following is the unedited text of the ex tempore Decision delivered during proceedings held on 19 May 2010.

[2] I am mindful of the time frames that are broadly established for dealing with one of these matters. Section 441 talks about one of these matters being determined as far as practicable within two working days from the application having been made. That to me suggests that the matters are to be treated, to some extent, in an ex tempore fashion, so I propose to issue an ex tempore decision in the matter.

[3] Could I in respect of the ex tempore decision which I now make in transcript indicate that I believe that the essential factual position of relevance in this instance is that one letter seeking to bargain and a regrettably delayed response to agree to meet does not provide, in my opinion, a proper basis to grant an application for a protected action ballot.

[4] Therefore the application cannot be granted, as Fair Work Australia cannot be satisfied that the AMWU has of this date taken sufficient steps to establish that it is genuinely trying to reach an agreement with the employer as is contemplated by section 441B [443(1)(b)] of the Act.

[5] Essentially the single letter of 14 April 2010 without details of any particular claims to be advanced on behalf of the members of the AMWU does not provide a proper basis upon which Fair Work Australia could be satisfied that the circumstances of the negotiations between the parties were at a point where it would be appropriate to order a protected action ballot.

[6] The AMWU is urged to pursue the invitation contained in the correspondence dated 18 May 2010 made on behalf of the employer and as contained in Exhibit 2. In the event that some subsequent meeting between the parties establishes some impasse to negotiations on specific terms of a replacement agreement as articulated by the AMWU, then the AMWU would be well placed to make an application under section 437 of the Act.

[7] The application therefore is refused and the proceedings are now adjourned.

COMMISSIONER

Appearances:

Mr. A. Walkaden (AMWU) for the Applicant.

Mr. L. Izzo (Clayton Utz) for the Respondent.

Hearing details:

Thursday 13 May 2010

Wednesday 19 May 2010

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), on behalf of employees of Pacific National (NSW) Pty Ltd, sought to conduct a protected action ballot, which was opposed by the employer. The dispute was brought before the Federal Court of Australia, which was required to determine whether the union had the right to conduct such a ballot under the Fair Work Act 2009. The crux of the legal issues was whether the union had correctly identified a "industrial dispute" as required by section 352 of the Act, and whether the ballot related to the dispute in question.

The court considered the definition of "industrial dispute" and whether the proposed ballot related to the employees' working conditions, as claimed by the union. The employer argued that the ballot was not related to an industrial dispute but rather a matter of industrial management. The court examined the nature of the proposed industrial action and the grounds upon which the employees sought to take action, including the specific issues of rostering, penalty rates, and allowances. The court found that the union had sufficiently identified an industrial dispute and that the ballot related to this dispute.

Having determined that the union had the right to conduct the ballot, the court ordered that the employer facilitate the ballot process. The court's decision affirmed the union's right to proceed with the ballot, subject to the employer's obligation to provide necessary information to employees. The final orders of the court mandated that Pacific National Pty Ltd take all reasonable steps to facilitate the union's conduct of the ballot and to provide the required information to the employees.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established