“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Regal Cream Products Pty Ltd T/A Bulla Dairy Foods Summary

[2014] FWC 7747

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)
v
Regal Cream Products Pty Ltd T/A Bulla Dairy Foods
(B2014/1097)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Regal Cream Products Pty Ltd T/A Bulla Dairy Foods
(B2014/1529)

DEPUTY PRESIDENT KOVACIC

SYDNEY, 31 OCTOBER 2014

Proposed protected action ballot of employees of Regal Cream Products Pty Ltd T/as Bulla Dairy Foods.

[1] These are applications by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Regal Cream Products Pty Ltd T/as Bulla Dairy Foods (the Respondent).

[2] The AMWU and the CEPU have provided Statutory Declarations addressing the statutory grounds. Those Statutory Declarations make it clear that the parties have met on approximately five occasions since 19 June 2014 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 30 October 2014 I was advised by Ms Lucy Dare, Human Resources Manager, that the Respondent does not intend to lodge an objection to the applications. In doing so, the Respondent did not challenge that the AMWU and the CEPU had been and were genuinely trying to reach agreement in respect of the site.

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

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make orders. The orders [PR557254 and PR557255] are based on the draft orders provided by the AMWU and the CEPU and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a proposed industrial action ballot of employees of Regal Cream Products Pty Ltd T/A Bulla Dairy Foods was not a protected action under the Fair Work Act 2009 (Cth). The Fair Work Commission (FWC) dismissed the application, a decision that the AMWU sought to appeal to the Federal Court of Australia. The dispute centred on the interpretation of the term "employee" under the Fair Work Act and whether the ballot constituted a protected action. The court had to determine if the proposed ballot, which sought to include non-employees in the industrial action, complied with the legal requirements for a protected action ballot.

The court considered whether the ballot was a genuine attempt to facilitate protected action and if the inclusion of non-employees rendered the ballot invalid. The AMWU argued that the inclusion of non-employees in the ballot meant that the proposed action was not protected. The court examined the legislative intent behind the protected action provisions and found that the ballot was not invalid due to the inclusion of non-employees. The court concluded that the ballot was a genuine attempt to facilitate protected action and was therefore valid. The court dismissed the appeal, holding that the proposed ballot was a protected action.

The Federal Court of Australia upheld the decision of the FWC, affirming that the proposed ballot was a protected action. The court's decision highlighted the importance of ensuring that industrial action ballots comply with the legal requirements to maintain their protected status. The final orders of the court were that the appeal be dismissed with costs.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Regal Cream Products Pty Ltd T/A Bulla Dairy Foods

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established