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

[2022] FWC 2650

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009

s.437—Protected action

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

PGSR Pty Ltd

(B2022/1474)

VICE PRESIDENT CATANZARITI

SYDNEY, 30 SEPTEMBER 2022

Proposed protected action ballot of employees of PGSR Pty Ltd

This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (Applicant) made under s.437 of the Fair Work Act 2009 (Cth) (Act) for a protected action ballot order in relation to certain employees of PGSR Pty Ltd (Respondent).

On 29 September 2022, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Tim Ferguson of the Applicant declared on 28 September 2022, 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.

An Order has been separately issued in PR746410.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU), on behalf of certain employees of PGSR Pty Ltd, applied to the Fair Work Commission for a protected action ballot order under section 437 of the Fair Work Act 2009. The application was made to facilitate a ballot of employees in relation to potential protected actions, presumably in response to ongoing disputes or negotiations concerning employment conditions. PGSR Pty Ltd did not oppose the application, leading to the matter being determined on the papers without a hearing.

The legal issues before the Commission centred on whether the union had fulfilled the conditions required to hold a protected action ballot, specifically the notification time and the requirement of genuine efforts to reach an agreement as stipulated in section 443(1) of the Act. The Commission needed to determine if the union had genuinely attempted to negotiate with the employer and if the statutory notification period had been appropriately observed.

The Vice President of the Fair Work Commission, Catanzariti, reviewed the material presented, including a statutory declaration from Tim Ferguson of the AMWU, which detailed the union's bargaining efforts and its genuine attempts to reach an agreement with PGSR Pty Ltd. Based on the evidence, the Vice President was satisfied that the union had met the notification requirements and had genuinely tried to negotiate with the employer. Consequently, the application for a protected action ballot order was approved.

An order was issued in PR746410, permitting the AMWU to proceed with the ballot of employees under the provisions of the Fair Work Act. The decision underscores the importance of the union’s adherence to procedural requirements and its genuine efforts to resolve disputes through negotiation before resorting to protected industrial action.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established