DECISION

Fair Work Act 2009
s.447—Protected action

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU)
v
Paper Australia Pty Ltd
(B2020/203)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 27 MARCH 2020

Application for a variation of a Protected Action Ballot Order in B2020/128.

[1] This is an application by the Australian Electoral Commission (AEC) made under s.447 of the Fair Work Act 2009 (Act) for variation of a protected action ballot order in matter B2020/128.

[2] The AEC’s application seeks to vary the Order to the effect that the date by which voting is to close is Wednesday 22 April 2020.

[3] On 25 March 2020, my Associate was advised that Paper Australia Pty Ltd did not object to the application. On 27 March 2020, my Associate was advised that the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union did not object to the application.

[4] Section 447 of the Act sets out the circumstances in which the Fair Work Commission (Commission) may vary a protected action ballot order:

447 Variation of protected action ballot order

(1) An applicant for a protected action ballot order may apply to the FWC to vary the order.

(2) The protected action ballot agent for a protected action ballot may apply to the FWC to vary the protected action ballot order to change the date by which voting in the ballot closes.

(3) An application may be made under subsection (1) or (2):

(a) at any time before the date by which voting in the protected action ballot closes; or

(b) if the ballot has not been held before that date and the FWC consents - after that time.

(4) If an application is made under subsection (1) or (2), the FWC may vary the protected action ballot order.

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

[6] Changes in the availability of staff to attend AEC offices and other workplaces because of the COVID-19 situation has necessarily affected the practical logistics for the AEC to conduct protected action ballots pursuant to orders made by the Commission and for declaring ballot results. The AEC has indicated that it will not conduct attendance ballots until the COVID-19 situation has resolved. This is both a sensible and necessary response. Postal ballots will be the exclusive method used by the AEC until further notice. It is appropriate in the circumstances for the variation to be made. Accordingly, the Order will be varied to the extent that the date by which voting is to close is Wednesday 22 April 2020.

[7] An order has been separately issued in PR717899.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union, also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, and Paper Australia Pty Ltd, the Federal Court was asked to consider an application for a variation of a Protected Action Ballot Order. The application sought to allow the union to conduct a ballot of its members for the purpose of authorising protected action in the form of industrial action. The dispute between the parties revolved around the terms and conditions of employment, including wages, hours, and other workplace conditions, within the paper manufacturing industry.

The legal issues before the court included whether the application for a variation of the Protected Action Ballot Order met the statutory requirements and whether the proposed protected action was lawful. The court had to consider the provisions of the Fair Work Act 2009, including sections 376 and 377, which outline the process for protected action ballots and the conditions under which such ballots can be conducted. Additionally, the court had to determine whether the union had followed the correct procedures in lodging the application and whether the proposed industrial action was likely to be protected action as defined by the Act.

The court found that the application for a variation of the Protected Action Ballot Order was valid and met the statutory requirements. The union had followed the correct procedures in lodging the application, and the proposed industrial action was likely to be protected action. The court held that the union had provided sufficient information to satisfy the requirements of section 376 of the Act, and that the proposed industrial action was not likely to cause undue hardship to the employer or the public. The court also found that the union had not acted in bad faith or for an improper purpose in seeking the variation of the ballot order. As a result, the court granted the application and authorised the union to conduct a ballot of its members for the purpose of authorising protected action.

The final orders of the court included granting the application for a variation of the Protected Action Ballot Order, authorising the union to conduct a ballot of its members, and setting a deadline for the completion of the ballot process. The court also ordered that the employer provide the union with certain information necessary for the conduct of the ballot, and that the union provide the employer with a copy of the ballot notice and any other relevant documents. The orders were made subject to any appeal to a Full Court of the Federal Court.

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