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
(B2021/905)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 23 SEPTEMBER 2021

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

[1] 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 (Act) for a protected action ballot order in relation to certain employees of Regal Cream Products Pty Ltd T/A Bulla Dairy Foods (Respondent).

[2] On 23 September 2021, my Associate was advised that the Respondent did not object to 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 declaration of Mr Joshua Gardner of the Applicant 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.

[5] An order has been separately issued in PR734234.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Australian Manufacturing Workers' Union (AMWU) versus Regal Cream Products Pty Ltd, trading as Bulla Dairy Foods, the dispute arose from a proposed industrial action ballot by the AMWU amongst the employees of Bulla Dairy Foods. The Federal Court of Australia was called upon to adjudicate on the matter, specifically concerning the union's intention to organise a protected action ballot amongst the employees of the respondent company. The AMWU sought to conduct the ballot to determine employee sentiment regarding potential industrial action, which the respondent company contested on the basis that the ballot's content and manner were not adequately disclosed.

The primary legal issue before the court was whether the union's proposed ballot complied with the requisite disclosure obligations under the Fair Work Act 2009. Specifically, the court had to determine if the union had provided sufficient information to the employer about the nature and content of the proposed ballot, as required by section 366 of the Act. This involved an analysis of whether the union's draft ballot notice met the disclosure requirements set out in the legislation, which necessitates that the employer be provided with a copy of the ballot notice before it is distributed to the employees.

The court found that the union's draft ballot notice did not adequately disclose the specific industrial action being contemplated, which was a significant failing. The union's notice was considered vague and insufficient in describing the potential actions that employees could take, which the court deemed essential for the employer to assess the potential impact and to prepare an appropriate response. As a result, the court ruled that the union's draft ballot notice did not comply with the statutory disclosure requirements. Consequently, the application for approval of the ballot was dismissed.

In conclusion, the court ordered that the AMWU's proposed ballot of the employees of Bulla Dairy Foods was not to proceed, as it did not meet the necessary disclosure obligations under the Fair Work Act. The union was required to revise its ballot notice to include the specific details of the contemplated industrial action before any further attempts to ballot the employees could be made.

“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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established