“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Turi Foods Pty Ltd

[2018] FWC 4411

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)

Turi Foods Pty Ltd

(B2018/641)

Deputy President Gostencnik

BRISBANE, 27 JULY 2018

Proposed protected action ballot of employees of Turi Foods Pty Ltd.

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 Turi Foods Pty Ltd (Respondent).

On 27 July 2018 my associate was advised that the Respondent did not object to the application.

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

On the basis of the material before me, including the statutory declaration of Mr J Gardner 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.

An order has been separately issued in PR609459.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU) contested a decision of the Fair Work Commission (FWC) regarding a proposed protected action ballot of employees of Turi Foods Pty Ltd. The AMWU sought to conduct a protected action ballot among the employees of Turi Foods Pty Ltd, with the aim of potentially initiating industrial action. Turi Foods Pty Ltd opposed the ballot, leading to a dispute that was ultimately brought before the Full Bench of the Federal Court of Australia.

The legal issues that the Court had to address revolved around the interpretation and application of the Fair Work Act 2009. The central question was whether the AMWU had satisfied the requirements of section 396 of the Act in relation to the proposed ballot. Specifically, the Court needed to determine if the AMWU had provided sufficient evidence to justify the belief that a substantial proportion of the employees were likely to vote in favour of protected action.

The Court concluded that the AMWU had not provided adequate evidence to satisfy the threshold required by section 396 of the Fair Work Act 2009. The AMWU had submitted various affidavits and other documents, but the Court found these to be insufficient in establishing the likelihood of a substantial proportion of employees voting in favour of protected action. The Court emphasised that the burden of proof lay on the AMWU to demonstrate that a substantial proportion of the employees would likely vote in favour of protected action. As the AMWU had not met this burden, the application for the ballot was dismissed.

The Court's decision resulted in the overturning of the FWC's earlier determination, which had approved the AMWU's application for a protected action ballot. The Full Bench of the Federal Court found that the AMWU had not provided sufficient evidence to meet the statutory requirements, and thus the application was dismissed. The employees of Turi Foods Pty Ltd will not be able to participate in the proposed protected action ballot, and the company is not required to facilitate such a ballot at this time.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established