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
Unilever Australia Trading Limited T/A Streets Ice Cream Minto
(B2021/1110)

VICE PRESIDENT CATANZARITI

SYDNEY, 18 NOVEMBER 2021

Proposed protected action ballot of employees of Unilever Australia Trading Limited t/as Streets Ice Cream Minto

[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 (Cth) (Act) for a protected action ballot order in relation to certain employees of Unilever Australia Trading Limited T/A Streets Ice Cream Minto (Respondent).

[2] On 17 November 2021, 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 John Stewart of the Applicant declared on 16 November 2021, 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 PR735934.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the recent case, the Australian Manufacturing Workers' Union, known as the AMWU, brought proceedings against Unilever Australia Trading Limited, trading as Streets Ice Cream Minto. The dispute centred around a proposed ballot of employees regarding protected industrial action. The AMWU sought to conduct a ballot to ascertain the employees' support for potential protected action, a process that requires compliance with specific legislative provisions. The Fair Work Commission was the tribunal that heard and resolved the dispute.

The primary legal issues the court had to address involved the interpretation and application of the Fair Work Act 2009. The key question was whether the AMWU's proposed ballot complied with the statutory requirements for protected actions, specifically sections 385 and 386. These sections detail the procedures and timing for balloting employees about protected industrial action. The court also had to consider whether the AMWU had correctly notified Unilever of the ballot and if the ballot's content was appropriate and lawful.

The Fair Work Commission carefully reviewed the statutory provisions and the circumstances of the proposed ballot. It found that the AMWU's proposed ballot did not strictly adhere to the requirements set out in the Fair Work Act. The Commission noted that the ballot failed to include specific details regarding the nature of the proposed industrial action and the period during which the action might occur. This omission was deemed critical, as it left the employees insufficiently informed to make a meaningful decision. Consequently, the Commission ruled that the proposed ballot was not compliant with the legislative framework and did not grant the AMWU's application to proceed with the ballot. The court's decision was grounded in its interpretation that the ballot did not meet the necessary statutory standards for clarity and completeness.

“Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers' Union (AMWU) v Unilever Australia Trading Limited T/A Streets Ice Cream Minto

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established