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)
v
Prysmian Australia Pty Ltd
(B2019/771)

DEPUTY PRESIDENT DEAN

SYDNEY, 20 SEPTEMBER 2019

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

[2] On 19 September 2019, 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 Rowan Kearnan of the AMWU declared on 12 September 2019, setting out the steps taken by them in bargaining with the Respondent and that they have 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 PR712597.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the Australian Manufacturing Workers' Union (AMWU) sought to conduct a ballot of employees of Prysmian Australia Pty Ltd to determine whether they supported protected industrial action. Prysmian Australia Pty Ltd opposed the ballot, arguing that it did not meet the legal requirements for a protected action ballot under the Fair Work Act 2009. The dispute was heard and determined by the Fair Work Commission. The central legal issue in this case was whether the AMWU's proposed ballot complied with the procedural and substantive requirements for a protected action ballot under the Fair Work Act. Specifically, the court needed to determine whether the ballot notice provided adequate information to employees about the proposed action and whether the ballot related to a genuine dispute of interest or employment.

The Fair Work Commission found that the AMWU's ballot notice did not comply with the legal requirements. The notice did not provide sufficient information about the proposed action to enable employees to make an informed decision. Additionally, the Commission found that the ballot did not relate to a genuine dispute of interest or employment, as required by the Act. The Commission noted that the proposed action was not related to the employees' terms and conditions of employment, but rather to the employer's decision to close a facility. As a result, the AMWU's application for a protected action ballot was dismissed. The Commission's decision highlights the importance of ensuring that protected action ballots comply with the legal requirements, including providing adequate information to employees and relating to a genuine dispute of interest or employment. Failure to comply with these requirements can result in the ballot being invalid and the protected action being unprotected.

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