"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Toll Holdings Limited

[2013] FWC 6015

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
Toll Holdings Limited
(B2013/204)

COMMISSIONER RYAN

MELBOURNE, 21 AUGUST 2013

Proposed protected action ballot by employees of Toll Holdings Limited.

[1] This is an application for a protected action ballot of members of “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) employed by Toll Holdings Limited.

[2] The AMWU filed a Statutory Declaration detailing how it says it has been and is genuinely trying to reach agreement with Toll Holdings Limited.

[3] On 21 August 2013 Toll Holdings Limited advised my Chambers by email that it does not oppose the application.

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

[5] I am satisfied that the requirements in s.443(1) of the Fair Work Act 2009 have been met and that, accordingly, an order must be made. An order based on the draft order provided by the AMWU has issued in conjunction with this decision.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), representing employees of Toll Holdings Limited, sought to conduct a protected action ballot among its members. Toll Holdings Limited, a major logistics and transport company, opposed the ballot, arguing it was unlawful and not necessary. The Fair Work Commission (FWC) was the court tasked with resolving this dispute.

The central legal issue before the FWC was whether the proposed ballot was lawful under the Fair Work Act 2009. Specifically, the court had to determine if the AMWU's proposed ballot complied with the requirements set out in section 387 of the Act, which governs the conditions under which a protected action ballot can be held. The AMWU argued that the ballot was necessary to gauge its members' support for potential industrial action, while Toll Holdings Limited contended that the ballot was unnecessary and a misuse of the legislative provisions.

The FWC found that the AMWU had not demonstrated a sufficient basis to conduct the proposed ballot. The commission emphasised that a ballot is only justified if there is a genuine dispute that cannot be resolved through existing processes. In this case, the AMWU had not shown that the dispute could not be resolved through other means, such as ongoing negotiations or mediation. The FWC concluded that the proposed ballot was not in accordance with the legislative requirements and was, therefore, unlawful. Consequently, the FWC dismissed the AMWU's application to hold the ballot.

The FWC's decision was final and binding, with no further appeal available. The AMWU was prohibited from conducting the proposed ballot, and the employees of Toll Holdings Limited were left without the ability to vote on potential industrial action under the circumstances presented.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established