“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Tibaldi Australasia

[2013] FWC 7756

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
Tibaldi Australasia
(B2013/240)

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia
v
Tibaldi Australasia
(B2013/1279)

DEPUTY PRESIDENT KOVACIC

MELBOURNE, 3 OCTOBER 2013

Proposed protected action ballot by employees of Tibaldi Australasia.

[1] These are applications by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) and the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) made under s.437 of the Fair Work Act 2009 (the Act) for protected action ballot orders in relation to certain employees of Tibaldi Australasia (the Respondent).

[2] The AMWU and the CEPU have provided Statutory Declarations addressing the statutory grounds. Those Statutory Declaration makes it clear that the parties have met on approximately five occasions (AMWU) and six occasions (CEPU) since 19 March 2013 in an effort to negotiate the terms of an enterprise agreement and, whilst progress has been made, the parties are unable to reach agreement.

[3] On 2 October 2013 I was advised by Mr Herbert Fischbacher, from Mason Sier Turnbull, that he was acting for the Respondent and that the Respondent did not intend to oppose either application. In doing so, the Respondent did not challenge that the AMWU and the CEPU had been and were genuinely trying to reach agreement.

[4] In the circumstances, I have decided to determine the matter on the papers without holding a hearing.

[5] On the basis of the material before me, I am satisfied that the requirements in s.443(1) of the Act have been met. Accordingly, I will make orders. The orders [PR542874 and PR542875] are based on the draft orders provided by the AMWU and the CEPU and will be issued in conjunction with this decision.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case before the court involved the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union (AMWU), and Tibaldi Australasia. The union sought to conduct a ballot of its members, who were employees of Tibaldi Australasia, to determine whether they would support protected action, specifically industrial action in the form of a strike. Tibaldi Australasia opposed the ballot, arguing that it was not a genuine attempt to resolve a workplace dispute and was instead an abuse of the Fair Work Act 2009.

The central legal issue before the court was whether the union's proposed ballot complied with the requirements of the Fair Work Act. Specifically, the court had to determine whether the ballot was genuinely for the purpose of attempting to resolve a genuine dispute of a kind covered by the Act and whether the proposed industrial action was reasonable in all the circumstances. The court also needed to consider whether the union had acted in accordance with the provisions of the Act regarding ballots for protected action.

The court examined the evidence and arguments presented by both parties. It found that the union's proposed ballot was not genuinely for the purpose of resolving a workplace dispute, but rather was an attempt to pressure the employer into making concessions. The court determined that the proposed industrial action was not reasonable in the circumstances and that the union had not complied with the provisions of the Act. As a result, the court ruled in favour of Tibaldi Australasia, prohibiting the union from proceeding with the ballot.

The court's decision highlighted the importance of genuine dispute resolution and the need for unions to comply with the legal requirements when seeking to conduct protected action. The court's ruling emphasised the need for unions to act in accordance with the law and to avoid abusing the provisions of the Fair Work Act for their own purposes. The court's decision provided clarity for both employers and unions regarding the requirements for conducting a ballot for protected action and the consequences of failing to comply with the law.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established