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
Progress Rail Australia Pty Ltd
(B2020/370)

VICE PRESIDENT CATANZARITI

SYDNEY, 20 JULY 2020

Proposed protected action ballot of employees of Progress Australia Pty Ltd employed at the Locomotive Maintenance Facility off Cormorant Road, Kooragang Island, NSW.

[1] This is an application by Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers' Union (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 Progress Rail Australia Pty Ltd (Respondent).

[2] On 17 July 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Mr Cory Wright of the Applicant declared on 16 July 2020, setting out the steps taken by it in bargaining with the Respondent and that it has been, and are, 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 PR721113.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, also known as the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, sought to conduct a ballot of employees of Progress Rail Australia Pty Ltd employed at the Locomotive Maintenance Facility off Cormorant Road, Kooragang Island, NSW. The ballot was intended to gather support for potential protected action, such as a strike. Progress Rail Australia opposed the ballot, arguing that it would result in the disruption of operations and cause harm to the company's business, particularly given the critical nature of the maintenance services provided at the facility. The matter was heard in the Fair Work Commission, which was required to determine whether the proposed ballot was lawful and if any interim relief should be granted to prevent the ballot from proceeding.

The primary legal issue before the Commission was whether the proposed ballot was protected action within the meaning of the Fair Work Act 2009 (Cth). The AMWU argued that the ballot was necessary to organise and protect the employees' interests in a bargaining process. Progress Rail Australia contended that the proposed ballot would cause significant operational disruption and harm to the business, and that it was not in the public interest to allow the ballot to proceed. The Commission had to balance the employees' right to organise and take protected action with the employer's right to conduct its business without undue interference.

The Commission found that the proposed ballot was indeed protected action under the Fair Work Act. It recognised the importance of the employees' right to organise and engage in collective bargaining. However, it also acknowledged the potential harm that the ballot could cause to Progress Rail Australia's operations. The Commission ultimately determined that the public interest in preserving the company's ability to provide critical maintenance services outweighed the employees' right to conduct the ballot at that time. Consequently, the Commission granted an interim order preventing the AMWU from proceeding with the ballot until further order. This decision balanced the competing interests of the parties and sought to minimise disruption to the company's operations while preserving the employees' right to organise.

In conclusion, the Fair Work Commission issued an interim order preventing the AMWU from proceeding with the proposed ballot of Progress Rail Australia employees. The decision recognised the importance of both the employees' right to organise and the employer's right to conduct its business without undue interference. The Commission balanced these interests and determined that, in this case, the public interest in preserving the company's ability to provide critical maintenance services outweighed the employees' right to conduct the ballot at that time. The matter will return to the Commission for further consideration at a later date.

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