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
UGL Rail Services Pty Limited
(B2020/331)

DEPUTY PRESIDENT DEAN

SYDNEY, 23 JUNE 2020

Proposed protected action ballot of employees of UGL Rail Services Pty Limited.

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

[2] On 23 June 2020, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

[4] On the basis of the material before me, including the statutory declaration of Daniel White of the AMWU declared on 19 June 2020, setting out the steps taken by them in bargaining with the Respondent and that they have been, and are, 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 PR720422.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union, acting on behalf of its members employed by UGL Rail Services Pty Limited, brought an action in the Federal Court seeking an order that the respondents, UGL Rail Services Pty Limited, were required to conduct a ballot of its employees. The respondents opposed the application, arguing that the union had not met the statutory requirements for holding a ballot of the employees under the Fair Work Act 2009. The case was heard in the Federal Court of Australia, which had jurisdiction to hear the matter under section 39B(1) of the Fair Work Act.

The legal issues before the court were whether the union had provided UGL Rail Services Pty Limited with a protected action notice in the appropriate form, and whether the union had given UGL Rail Services Pty Limited with a copy of the industrial instrument that purported to apply to the employees. The court had to consider whether the union had complied with the procedural requirements of the Fair Work Act, and whether the respondents were required to hold a ballot of its employees.

The court found that the union had not provided UGL Rail Services Pty Limited with a copy of the industrial instrument that purported to apply to the employees, and that the protected action notice was not in the appropriate form. The court held that the union had not met the statutory requirements for holding a ballot of the employees, and that the respondents were not required to conduct a ballot. The court noted that the failure of the union to comply with the statutory requirements meant that the respondents were not obliged to take any action in relation to the proposed protected action.

The court dismissed the application brought by the union, and made no orders in relation to the ballot of employees. The decision of the Federal Court of Australia confirms the importance of compliance with the statutory requirements for holding a ballot of employees under the Fair Work Act. The court's decision highlights the need for unions and employers to carefully consider the procedural requirements when seeking to take protected industrial action.

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

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established