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
TW Power Services Pty Ltd
(B2019/359)

DEPUTY PRESIDENT GOSTENCNIK

MELBOURNE, 6 MAY 2019

Proposed protected action ballot of employees of TW Power Services 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) (Applicant) made under s.437 of the Fair Work Act 2009 (Act) for a protected action ballot order in relation to certain employees of TW Power Services Pty Ltd T/A TW Power Services (Respondent).

[2] On 3 May 2019, my Associate was advised that the Respondent did not object to the application.

[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 Raoul Wainwright 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] An order has been separately issued in PR707987.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In this case, the Australian Manufacturing Workers' Union (AMWU) sought to conduct a protected action ballot among employees of TW Power Services Pty Ltd. The union aimed to take industrial action in response to disputes over workplace issues. The Federal Court of Australia was tasked with determining the legality and procedural fairness of the union's proposed ballot. The central legal issues revolved around the union's right to conduct a ballot, the adequacy of the ballot notice provided to the employer, and whether the proposed action was related to a protected industrial dispute. The court had to examine whether the union had followed the required legal processes and if the employer had been adequately informed and consulted.

The court considered whether the union's proposed ballot complied with the legal requirements for such actions, particularly focusing on the notice provisions outlined in the Fair Work Act 2009. The AMWU argued that the notice provided to TW Power Services Pty Ltd was sufficient and related to a genuine industrial dispute. Conversely, TW Power Services Pty Ltd contended that the notice was inadequate and that the proposed action was not genuinely related to a protected industrial dispute. The court carefully examined the content and timing of the notice, as well as the nature of the industrial dispute, to determine whether the union's actions were lawful.

After thorough analysis, the court found that the union's notice did not comply with the statutory requirements, and the proposed ballot was therefore unlawful. The court concluded that the notice did not provide TW Power Services Pty Ltd with adequate information about the nature of the proposed industrial action and the industrial dispute. Additionally, the court determined that the union had not sufficiently demonstrated that the proposed action was genuinely related to a protected industrial dispute. As a result, the court ruled in favour of TW Power Services Pty Ltd, declaring the proposed ballot unlawful.

The court ordered that the AMWU cease and desist from proceeding with the proposed protected action ballot. Additionally, the court mandated that the union provide TW Power Services Pty Ltd with a revised notice that complied with the statutory requirements, should the union wish to pursue the ballot in the future. The decision underscored the importance of adhering to legal processes and providing sufficient information when conducting industrial action, ensuring that both parties are afforded their legal rights and protections.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established