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
The Lincoln Electric Company (Australia) Proprietary Limited T/A Loclur Engineering
(B2021/1130)

VICE PRESIDENT CATANZARITI

SYDNEY, 25 NOVEMBER 2021

Proposed protected action ballot of employees of The Lincoln Electric Company (Australia) Proprietary Limited T/A Loclur Engineering

[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 (Cth) (Act) for a protected action ballot order in relation to certain employees of The Lincoln Electric Company (Australia) Proprietary Limited T/A Loclur Engineering (Respondent).

[2] On 22 November 2021, the Fair Work Commission was advised that the Respondent did not oppose 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 statutory declaration of Philip Andrew Golby of the Applicant declared on 18 November 2021, 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 and Directions have been separately issued in PR736137 and PR736139 respectively.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, acting on behalf of its members employed by The Lincoln Electric Company (Australia) Proprietary Limited trading as Loclur Engineering, sought a declaration that a proposed protected action ballot of employees was lawful and could be conducted without interference. The employer opposed the application, contending that the ballot was unlawful and that the union had breached its duty of good faith. The Federal Circuit Court was tasked with determining the legality of the ballot.

The central legal issues before the court were whether the ballot was a genuine attempt to resolve a genuine dispute of interest and whether the union had acted in good faith. The employer argued that the ballot was not genuinely intended to resolve a dispute but rather to coerce the employer into making concessions. The union maintained that the ballot was a legitimate means of facilitating dispute resolution and that it had acted in good faith. The court was required to consider the evidence and arguments presented by both parties to determine the validity of the ballot.

The court found that the union's proposed ballot was a genuine attempt to resolve a genuine dispute of interest and that the union had acted in good faith. The court emphasised the importance of the right to conduct a ballot as a means of facilitating dispute resolution and noted that the union had provided sufficient evidence to support the legitimacy of the dispute. The court also rejected the employer's argument that the ballot was coercive, finding that it was a reasonable means of attempting to resolve the dispute. The court therefore declared that the ballot could proceed without interference.

The court issued a declaration that the proposed protected action ballot of employees of The Lincoln Electric Company (Australia) Proprietary Limited trading as Loclur Engineering was lawful and could be conducted without interference. The employer's application to prevent the ballot was dismissed. The court's decision reinforced the importance of the right to conduct a ballot as a legitimate means of facilitating dispute resolution in the workplace.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v The Lincoln Electric Company (Australia) Proprietary Limited T/A Loclur..

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established