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
Sealed Air Australia Pty Limited
(B2021/1174)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 26 NOVEMBER 2021

Proposed protected action ballot of employees of Sealed Air Australia Pty Limited.

[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 Sealed Air Australia Pty Limited (Respondent).

[2] On 26 November 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 Barry Terzic 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 PR736208.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case of the Australian Manufacturing Workers' Union (AMWU) versus Sealed Air Australia Pty Limited, the Fair Work Commission was tasked with considering the union's proposed protected action ballot. The dispute arose when the union sought to conduct a ballot among employees of Sealed Air Australia Pty Limited, intending to authorise potential industrial action in response to ongoing negotiations over a new enterprise agreement. The company contested the union's proposed ballot, raising concerns about its procedural fairness and the union's compliance with relevant statutory provisions.

The primary legal issues before the Commission involved whether the union had complied with the procedural requirements outlined in the Fair Work Act 2009, specifically those concerning the conduct of a protected action ballot. This included verifying that the union had given the employer adequate notice of the ballot, and whether the ballot notice provided to the employees contained the necessary information as required by law. Additionally, the Commission needed to determine whether the union had acted in good faith and whether the ballot was reasonably necessary to protect the employees' interests.

In addressing these issues, the Commission examined the evidence presented by both parties. The union argued that it had followed all necessary procedural steps and had acted in good faith, aiming to protect the employees' interests. The company, on the other hand, contended that the union had failed to provide adequate notice and that the ballot notice did not comply with statutory requirements. After careful consideration, the Commission found that the union had indeed complied with the necessary procedural requirements and had acted in good faith. The Commission also concluded that the proposed ballot was reasonably necessary to protect the employees' interests. Consequently, the Commission ruled in favour of the union, allowing the proposed ballot to proceed.

As a result of the Commission's decision, the union was permitted to conduct the protected action ballot among the employees of Sealed Air Australia Pty Limited. This ruling underscores the importance of adhering to procedural requirements in industrial relations matters and highlights the Commission's role in ensuring fair processes in the negotiation of enterprise agreements.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Sealed Air Australia Pty Limited

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established