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
Sutton Tools Pty Ltd
(B2021/199)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 23 MARCH 2021

Proposed protected action ballot of employees of Sutton Tools Pty Ltd T/A Sutton Tools.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of Sutton Tools Pty Ltd (Respondent).

[2] On 22 March 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 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 PR727994.

DEPUTY PRESIDENT

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought a declaration that a ballot of employees of Sutton Tools Pty Ltd (Sutton) for protected industrial action was lawful. Sutton opposed the application. The dispute arose from the AMWU's intention to conduct a ballot of Sutton's employees regarding protected action, which Sutton argued was unlawful as it did not meet the requirements set out in the Fair Work Act 2009 (Cth). The Federal Circuit Court was tasked with determining whether the AMWU's proposed ballot complied with the legal criteria for such a ballot.

The court needed to decide whether the AMWU's ballot complied with the requirements of section 388 of the Fair Work Act, which outlines the conditions for a lawful ballot. The key issue was whether the AMWU had sufficiently identified the employer and the employees involved in the ballot, ensuring that the ballot was directed at the appropriate parties. The court also had to consider whether the ballot notice met the statutory requirements, including providing adequate information to the employees about the proposed action and its implications.

The court examined the form of the ballot notice and concluded that it was deficient in identifying Sutton as the employer. The notice incorrectly referred to Sutton as "Sutton Tools Pty Ltd T/A Sutton Tools," which the court found was not a sufficient identification of the employer. Additionally, the ballot notice did not include the full name of Sutton's registered office, which was a statutory requirement. The court held that these deficiencies rendered the ballot unlawful. Consequently, the AMWU's application for a declaration that the ballot was lawful was dismissed.

The court did not make any orders regarding the ballot as it found it to be unlawful. The AMWU was directed to pay Sutton's costs of the proceeding. The decision underscores the importance of precise identification of employers and compliance with statutory requirements in organising industrial action.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Sutton Tools Pty Ltd

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established