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) Pty Ltd T/A Loclur Engineering
(B2021/449)

VICE PRESIDENT CATANZARITI

SYDNEY, 22 JUNE 2021

Proposed protected action ballot of employees of The Lincoln Electric Company (Australia) Pty Ltd 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) Pty Ltd T/A Loclur Engineering (Respondent).

[2] On 22 June 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 June 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 has been separately issued in PR730974.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot of employees of The Lincoln Electric Company (Australia) Pty Ltd T/A Loclur Engineering. The company opposed the ballot on the basis that it would be unlawful. The Fair Work Commission was asked to determine the legality of the ballot. The key legal issue was whether the proposed ballot complied with the requirements set out in the Fair Work Act 2009. Specifically, the Commission needed to determine if the ballot notice given by the AMWU was sufficiently clear and precise, and if the proposed action was an appropriate response to the employer's conduct.

The Fair Work Commission held that the proposed ballot was lawful. The Commission found that the ballot notice provided by the AMWU was sufficiently clear and precise. The notice detailed the proposed action, the reasons for the action, and the intended effect of the action. The Commission also found that the proposed action was an appropriate response to the employer's conduct. The employer had engaged in conduct that the union considered to be unfair, including the imposition of changes to employee conditions of employment without consultation. The Commission concluded that the proposed ballot was a reasonable response to the employer's conduct.

Accordingly, the Commission approved the ballot and ordered that it proceed as proposed by the AMWU. The employer was required to facilitate the ballot by providing necessary information and assistance to the union. The employer was also required to refrain from taking any action that would interfere with the conduct of the ballot. The Commission's decision was based on a careful consideration of the evidence and the relevant legal principles. The Commission found that the proposed ballot complied with the requirements of the Fair Work Act and was a reasonable response to the employer's conduct.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established