“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v The Trustee for the Fullarton Family Trust T/A F E Welding

[2023] FWC 2857

FAIR WORK COMMISSION

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

The Trustee For The Fullarton Family Trust T/A F E Welding

(B2023/1185)

COMMISSIONER LEE

MELBOURNE, 31 OCTOBER 2023

Proposed protected action ballot of employees of The trustee for The Fullarton Family Trust

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 The Trustee for The Fullarton Family Trust T/A F E Welding (the Respondent).

The Respondent objected to the proposed protected action ballot order on the basis that they have been negotiating in good faith with the AMWU. The objection did not outline a statutory basis that would support the rejection of the application.

In order to deal with the objection, I listed the matter for hearing on 30 October 2023. At the Hearing, the Respondent withdrew the objection.

On the basis of the material before me, including the declaration of Mr Stephen Fodrocy of the Applicant, setting out the steps taken by the Applicant in bargaining and the assertion 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.

An order has been separately issued in PR767780.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) lodged an application under section 437 of the Fair Work Act 2009 for a protected action ballot order concerning employees of The Trustee for The Fullarton Family Trust T/A F E Welding. The AMWU sought to conduct a ballot of its members regarding potential protected action, while the Respondent, the Trustee, objected to this proposal on the grounds that they were engaged in good faith negotiations with the union. The Trustee did not, however, provide a statutory basis for rejecting the application.

The central legal issues before the Fair Work Commission were whether the AMWU had met the notification requirements for a protected action ballot and whether the Respondent's objections had any legal merit. The Commissioner needed to determine if the AMWU had genuinely attempted to reach an agreement with the Respondent and if the statutory prerequisites for a ballot had been satisfied.

After hearing the arguments and considering the evidence, including a declaration by Mr Stephen Fodrocy of the AMWU affirming the union's efforts to negotiate in good faith, the Commissioner found that the notification period had been observed and the requirements of section 443(1) of the Act had been met. The Trustee subsequently withdrew their objection during the hearing. Based on the presented material and declarations, the Commissioner concluded that the AMWU's application was valid and should proceed.

The Fair Work Commission issued an order in PR767780, permitting the AMWU to proceed with the protected action ballot as requested. The Commissioner's decision underscores the importance of adhering to notification requirements and the necessity for unions and employers to engage in good faith negotiations. The outcome ensures that the AMWU can proceed with their proposed ballot, subject to the terms of the order issued.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established