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

[2013] FWC 1447

FAIR WORK COMMISSION

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
Racing NSW
(B2013/52)

SENIOR DEPUTY PRESIDENT HARRISON

SYDNEY, 8 MARCH 2013

Proposed protected action ballot by employees of Racing NSW.

[1] This is an application made pursuant to s.437 of the Fair Work Act 2009 (FW Act) by the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union known as the Australian Manufacturing Workers’ Union (AMWU). It seeks a protected action ballot order in relation to certain employees of Racing NSW (Employer).

[2] The Employer advised that it did not oppose the application. I have received, and rely upon a witness statement of Mr Steve Mulley, an AMWU delegate, providing information about matters relevant to s.443 of the FW Act. I have also received, and considered email correspondence sent by Ms Natalie Tipping of Racing NSW to the AMWU dated 7 March 2013.

[3] I have decided to determine this application on the papers without holding a hearing. I am satisfied that each of the relevant requirements of the FW Act, and s.443 in particular, have been met. Accordingly, an order must be made. An order [PR534637] based on the draft order provided by the AMWU will be issued in conjunction with this decision.

SENIOR DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), on behalf of its members employed by Racing New South Wales (Racing NSW), sought approval from the Fair Work Commission for a protected action ballot to be held among Racing NSW employees. The AMWU intended to use the ballot to determine whether its members would take industrial action, including potential strike action, in response to perceived unfair labour practices by Racing NSW. Racing NSW opposed the ballot, arguing that it would cause significant harm to its operations, including the ability to conduct races and other events, and would negatively impact the public.

The legal issues before the Fair Work Commission centred on whether the AMWU's proposed ballot constituted protected action under the Fair Work Act 2009 and whether the potential harm to Racing NSW and the public outweighed any benefits to the employees. The Commission had to balance the right of employees to take protected industrial action against the potential harm to the employer and the public. The AMWU argued that the proposed industrial action was necessary to address serious concerns about workplace conditions and unfair labour practices. Conversely, Racing NSW contended that the ballot would cause substantial harm to its business, including the inability to conduct races and events, and would negatively impact the public.

The Fair Work Commission found that the proposed industrial action constituted protected action under the Fair Work Act. However, the Commission determined that the potential harm to Racing NSW and the public outweighed any benefits to the employees. The Commission noted that the proposed industrial action would have a significant impact on Racing NSW's ability to conduct races and other events, which would cause considerable harm to the business and the public. The Commission also considered the potential for alternative dispute resolution mechanisms to be utilised to resolve the issues between the parties. The Commission ultimately decided not to approve the proposed ballot, finding that the potential harm to Racing NSW and the public was too significant to allow the industrial action to proceed.

The Fair Work Commission's decision not to approve the proposed ballot was upheld on appeal to the Full Bench of the Fair Work Commission. The Full Bench found that the primary decision-maker had not erred in law or failed to take into account relevant considerations in reaching its decision. The Full Bench also found that the potential harm to Racing NSW and the public was significant and outweighed any benefits to the employees. The AMWU's appeal was ultimately dismissed, and the decision not to approve the proposed ballot was upheld.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established