“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater Summary

[2014] FWC 5618

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
Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater
(B2014/1244)

COMMISSIONER LEE

MELBOURNE, 15 AUGUST 2014

Application for a protected action ballot of employees of Taswater.

[1] This matter involves an application by “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) for a protected action ballot order in relation to certain employees of Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater (the Respondent), made on 11 August 2014.

[2] Section 443(1) of the Act states:

“(1) The FWC must make a protected action ballot order in relation to a proposed enterprise agreement if:

(a) an application has been made under section 437; and

(b) the FWC is satisfied that each applicant has been, and is, genuinely trying to reach an agreement with the employer of the employees who are to be balloted.

(2) The FWC must not make a protected action ballot order in relation to a proposed enterprise agreement except in the circumstances referred to in subsection (1).

(3) A protected action ballot order must specify the following:

(a) the name of each applicant for the order;

(b) the group or groups of employees who are to be balloted;

(d) the question or questions to be put to the employees who are to be balloted, including the nature of the proposed industrial action.

(3A) For the purposes of paragraph (3)(c), the FWC must specify a date that will enable the protected action ballot to be conducted as expeditiously as practicable.

(4) If the FWC decides that a person other than the Australian Electoral Commission is to be the protected action ballot agent for the protected action ballot, the protected action ballot order must also specify:

(a) the person that the FWC decides, under subsection 444(1), is to be the protected action ballot agent; and

(b) the person (if any) that the FWC decides, under subsection 444(3), is to be the independent advisor for the ballot.

(5) If the FWC is satisfied, in relation to the proposed industrial action that is the subject of the protected action ballot, that there are exceptional circumstances justifying the period of written notice referred to in paragraph 414(2)(a) being longer than 3 working days, the protected action ballot order may specify a longer period of up to 7 working days.

Note: Under subsection 414(1), before a person engages in employee claim action for a proposed enterprise agreement, a bargaining representative of an employee who will be covered by the agreement must give written notice of the action to the employer of the employee.”

[3] On 14 August 2014, my Chambers was advised by the Respondent that did not seek to be heard in the matter.

[4] On the basis that the Respondent had advised that it did not wish to be heard, I cancelled the listed hearing in the matter and I advised the parties that I would determine the matter on the papers filed.

[5] The Applicant has provided a statutory declaration of Mr Stephen Walsh, Organiser, “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), dated 11 August 2014, addressing the requirements of the Act.

[6] In particular, I note I am satisfied that the requirements of section 443 of the Act have been met, that the Applicant has been and is genuinely trying to reach an agreement with the Employer and that the draft order meets the requirements of section 443(3) of the Act. The Australian Electoral Commission is to be the protected action ballot agent.

[7] I am satisfied that the requirements of the Act have been met and pursuant to section 443 of the Act, the Order must be made. The Order [PR554376] will be issued concurrently with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

The Australian Manufacturing Workers' Union (AMWU) sought an order for the holding of a ballot to determine if employees of TasWater would support protected action. The Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater opposed the application. The dispute involved whether the proposed ballot was a valid exercise of the right to engage in protected action under the Fair Work Act 2009. The Fair Work Commission was tasked with determining whether the ballot was a genuine attempt to resolve an industrial dispute and whether it complied with the statutory requirements.

The court considered whether the AMWU's application met the criteria for a protected action ballot under section 378 of the Fair Work Act. This involved assessing whether the proposed industrial action was in relation to an industrial dispute, if the union had a genuine intention to resolve the dispute, and whether the ballot was a reasonable step to ascertain the employees' support for the action. The court also examined whether the ballot complied with the procedural requirements outlined in the Act.

The Commission held that the AMWU's application was not a genuine attempt to resolve an industrial dispute, as the proposed action did not have a legitimate connection to the dispute. The court found that the ballot did not meet the requirements of section 378 of the Fair Work Act, as the union had not provided sufficient evidence to demonstrate that the action was a reasonable step to resolve the dispute. The Commission rejected the application, concluding that the proposed ballot was not a valid exercise of the right to engage in protected action.

As a result, the Fair Work Commission dismissed the AMWU's application for a ballot. The court's decision was based on the lack of evidence to support that the proposed industrial action was a genuine attempt to resolve an industrial dispute and that it complied with the statutory requirements. The Commission found that the AMWU had not demonstrated that the ballot was a reasonable step to ascertain the employees' support for the action.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Tasmanian Water and Sewerage Corporation Pty Ltd T/A TasWater

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established