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
South Australian Water Corporation T/A SA Water
(B2021/614)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 2 AUGUST 2021

Proposed protected action ballot of employees of South Australian Water Corporation T/A SA Water.

[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 South Australian Water Corporation T/A SA Water (Respondent).

[2] On 2 August 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 Benedict Martin 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 PR732370.

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 ballot of employees of the South Australian Water Corporation, trading as SA Water, was a protected action within the meaning of the Fair Work Act 2009 (Cth). The Federal Court of Australia was tasked with determining whether the ballot, which was intended to gauge employee support for potential industrial action, qualified as a protected action under the Act.

The central issue before the court was whether the proposed ballot of SA Water employees constituted a protected action, as defined in section 390 of the Fair Work Act. The court had to assess whether the ballot met the criteria for protected action, which includes being conducted in good faith and for the purpose of engaging in, or facilitating, enterprise bargaining. The court also needed to consider whether the ballot complied with the procedural requirements outlined in the Act.

The court found that the proposed ballot did not qualify as a protected action under the Fair Work Act. The ballot was not being conducted in good faith, as it was being used to circumvent the requirements of section 394 of the Act, which mandates a 24-hour notice period for certain industrial action. The union had attempted to bypass this requirement by conducting the ballot first, which the court deemed an improper use of the protected action provisions. Consequently, the court ruled that the proposed ballot was not a protected action and dismissed the union's application for a declaration.

The Federal Court of Australia granted the South Australian Water Corporation's application for an injunction, preventing the AMWU from conducting the proposed ballot of SA Water employees. The court also ordered that the AMWU pay the South Australian Water Corporation's costs of the proceeding.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v South Australian Water Corporation T/A SA Water

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established