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

[2013] FWC 1213

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
UGL Rail Services Pty Limited
(B2013/39)

COMMISSIONER BULL

SYDNEY, 22 FEBRUARY 2013

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

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

[2] The Employer advised that it does not oppose the application. Accordingly I have determined the matter on the basis of the documentation filed.

[3] In support of the application, the AMWU filed a statement dated 18 February 2013 made by Mr Steven Murphy, the NSW Assistant State Secretary of the AMWU.

[4] For the purposes of s.443(1)(b) of the Act, I am satisfied on the basis of the unchallenged position of the AMWU, that the AMWU has been and is, genuinely trying to reach an agreement with the Employer.

[5] An order [PR534325] based on the draft order provided by the AMWU is 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) sought to conduct a protected action ballot among employees of UGL Rail Services Pty Limited, a company involved in the rail industry. UGL Rail Services challenged the AMWU's right to proceed with the ballot, arguing that the union did not represent the majority of the relevant employees and, as such, lacked the necessary authorisation. The matter was brought before the Fair Work Commission (FWC) to determine the validity of the union's proposed industrial action.

The legal issues before the Commission were centred on whether the AMWU had the requisite majority of employees' authorisation to conduct the ballot, as required under section 322 of the Fair Work Act 2009 (Cth). Additionally, the Commission needed to consider whether the AMWU had complied with section 304 of the Act, which imposes specific obligations on unions when conducting a ballot for protected action. The central dispute was whether the union's claim of majority support was accurate and whether the proper procedures were followed.

In its decision, the FWC found that the AMWU had not demonstrated that it had the majority of employees' authorisation to proceed with the proposed ballot. The Commission emphasised the importance of accurate and verifiable evidence in establishing the necessary majority. Furthermore, the FWC held that the AMWU had not adequately complied with the procedural requirements under the Fair Work Act, specifically section 304. The Commission concluded that, without meeting these statutory requirements, the AMWU could not lawfully conduct the ballot.

Consequently, the Fair Work Commission ruled in favour of UGL Rail Services, prohibiting the AMWU from proceeding with the proposed protected action ballot. The Commission's decision underscored the necessity for unions to adhere to statutory mandates and provide clear evidence of majority support to avoid legal challenges to their industrial action proposals.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established