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

[2023] FWC 331

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)
v

UGL Rail Services Pty Ltd

(B2023/62)

VICE PRESIDENT CATANZARITI

SYDNEY, 8 FEBRUARY 2023

Proposed protected action ballot of employees of UGL Rail Services 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 (Cth) (Act) for a protected action ballot order in relation to certain employees of UGL Rail Services Pty Ltd (Respondent).

On 6 February 2023, the Fair Work Commission was advised that the Respondent did not oppose the application.

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

On the basis of the material before me, including the statutory declaration of Nathan Everson of the Applicant declared on 30 January 2023, 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 PR750323.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers' Union (AMWU), acting on behalf of its members employed by UGL Rail Services Pty Ltd, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for authorisation to hold a ballot of its members to determine whether they would support protected action. UGL Rail Services Pty Ltd did not oppose the application. The dispute centred around the authorisation of a protected action ballot, which is a crucial step for unions seeking to engage in industrial action to support their members in negotiations over employment conditions.

The primary legal issue before the Fair Work Commission was whether the AMWU had met the statutory requirements to hold a ballot for protected action. Specifically, the Commission needed to ascertain if the union had genuinely attempted to reach an agreement with the employer and if the statutory notification period for the proposed agreement had been observed. The union's application was supported by a statutory declaration from Nathan Everson, outlining the union's efforts in bargaining with the employer and affirming the union's genuine attempt to reach an agreement.

The Fair Work Commission, Vice President Catanzariti, determined the matter on the basis of the documentation provided, including the statutory declaration by Nathan Everson. The Vice President found that the AMWU had indeed taken the necessary steps to bargain with the employer and had been genuinely attempting to reach an agreement. Furthermore, the statutory notification period for the proposed agreement had been complied with. Therefore, the application for a protected action ballot order was granted.

In light of the findings, the Fair Work Commission issued an order permitting the AMWU to proceed with the ballot among its members. This decision was made without the need for a hearing, given the lack of opposition from UGL Rail Services Pty Ltd and the adequacy of the documentation provided. The order ensures that the union can lawfully organise a ballot to determine the members' support for potential protected action, which is a critical mechanism in industrial relations negotiations under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established