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
Parmalat Australia YD Pty Ltd
(B2016/1161)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 4 NOVEMBER 2016

Proposed protected action ballot of employees of Parmalat Australia YD 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) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Parmalat Australia YD Pty Ltd (the Respondent).

[2] On 4 November 2016 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 B Terzic 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 PR587236.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union (AMWU) versus Parmalat Australia YD Pty Ltd, the Fair Work Commission (FWC) was called upon to determine whether the union's proposed ballot of its members for protected action was in accordance with the relevant provisions of the Fair Work Act 2009. The AMWU sought to conduct a protected action ballot amongst its members, employees of Parmalat Australia YD Pty Ltd, in relation to a workplace dispute. Parmalat challenged the ballot's validity, arguing that it did not comply with the procedural requirements outlined in the Act.

The central legal issue before the FWC was whether the AMWU had satisfied the necessary conditions for a protected action ballot as stipulated under section 387 of the Fair Work Act. Specifically, the Commission needed to examine whether the union had provided Parmalat with adequate details concerning the ballot, as required by section 387(1)(b) and (c). The FWC had to determine if the AMWU had included the relevant matters in the ballot paper and notification, including the proposed action, the date of the ballot, and the manner in which it would be conducted. Additionally, the FWC needed to consider if the union had provided the employer with a copy of the proposed ballot paper, as mandated by the Act.

The FWC found that the AMWU had not fully complied with the procedural requirements for a protected action ballot. The union failed to include certain information in the notification provided to Parmalat, such as the date and manner in which the ballot would be conducted. Furthermore, the union did not provide Parmalat with a copy of the proposed ballot paper. As a result, the FWC ruled that the proposed ballot was invalid. Consequently, the AMWU's application to conduct the ballot was dismissed.

The FWC's decision resulted in the AMWU's proposed ballot being declared invalid, and the union was unable to proceed with the ballot. The FWC's ruling underscored the importance of adhering to the procedural requirements for protected action ballots, ensuring that both parties are fully informed of the proposed action and its intended execution. The decision serves as a reminder to unions and employers alike of the need to comply with the statutory obligations when engaging in workplace disputes and protected action ballots.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Parmalat Australia YD 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