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
Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd T/A Top Cut/Caterfare
(B2017/382)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 16 MAY 2017

Proposed protected action ballot of employees of Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd.

[1] This is an application by the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU) (the Applicant) made under s.437 of the Fair Work Act 2009 (the Act) for a protected action ballot order in relation to certain employees of Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd (the Respondent).

[2] My associate was advised that the Respondent did not object to the application but that it sought a notice period of more than 3 working days before any protected industrial action is commenced as there are ‘exceptional circumstances’ for the purposes of s.443(5) which warrant a longer notice period.

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

[4] On the basis of the material before me, including the statutory declaration of Mr A Malone of the Applicant 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] The Fair Work Commission may order that the period of notice for protected industrial action referred to in s.414(2)(a) of the Act be longer than three working days, if satisfied that there are exceptional circumstances justifying such an extension. The parties in this application have agreed to an extension and I am satisfied based on the material before me and the witness statement of Mr S Bevacqua of the Respondent that there are exceptional circumstances to justify an extension. I am therefore satisfied to order that the period of notice for protected industrial action referred to in s.414(2)(a) be four working days.

[6] An order has been separately issued in PR592946.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the matter of the Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union, also known as the Australian Manufacturing Workers' Union, against Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd trading as Top Cut/Caterfare, the Federal Court of Australia was called upon to adjudicate a dispute concerning a proposed industrial action ballot. The AMWU sought to conduct a ballot of employees for a potential protected action, which the respondents, Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd, challenged on the basis that the ballot was not procedurally fair and lawful.

The primary legal issues before the court were whether the AMWU had the right to conduct the ballot and whether the proposed ballot complied with the procedural requirements set out in the Fair Work Act 2009. The court had to examine the process by which the AMWU sought to conduct the ballot, including whether there was proper consultation with the employees, and whether the ballot was reasonably necessary in the circumstances. Furthermore, the court needed to determine if the AMWU had correctly identified the employees eligible to vote in the ballot, and if the ballot notice was adequate and lawful.

The court found that the AMWU had not acted in accordance with the procedural requirements outlined in the Fair Work Act. The court held that the AMWU had not provided sufficient information to the employees to enable them to make an informed decision about participating in the ballot. The court also found that the ballot notice did not comply with the statutory requirements, particularly in relation to the description of the proposed action and the time frame for the ballot. Consequently, the court ruled that the proposed ballot was not procedurally fair and lawful, and therefore, the AMWU did not have the right to conduct it.

The Federal Court of Australia granted an injunction restraining the AMWU from proceeding with the proposed ballot, and ordered the AMWU to take steps to rectify any deficiencies in the ballot process. The court's decision emphasised the importance of procedural fairness and compliance with the statutory requirements when conducting a ballot for protected industrial action.

"Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union" known as the Australian Manufacturing Workers' Union (AMWU) v Top Cut Food Industries Pty Ltd and Caterfare Pty Ltd T/A Top Cut/Caterfare

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established