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

[2022] FWC 2710

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

Visy Packaging Pty Ltd

(B2022/1529)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 10 OCTOBER 2022

Proposed protected action ballot of employees of Visy Packaging 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 (Act) for a protected action ballot order in relation to certain employees of Visy Packaging Pty Ltd (Respondent).

On 10 October 2022, my Associate was advised that the Respondent did not object to 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 declaration of Mr Andrew Bonello 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.

An order has been separately issued in PR746644.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The Australian Manufacturing Workers’ Union (AMWU), acting on behalf of certain employees, applied to the Fair Work Commission under section 437 of the Fair Work Act 2009 for a protected action ballot order in relation to employees of Visy Packaging Pty Ltd. The application was made due to difficulties in reaching an agreement between the union and the company regarding the terms of employment. The Fair Work Commission was tasked with determining whether the union had satisfied the necessary criteria to hold a ballot for protected action.

The primary legal issue for the court was whether the union had met the requirements set out in section 443(1) of the Fair Work Act. This involved verifying that the union had genuinely attempted to reach an agreement with the employer and that the notification period for the proposed agreement was appropriate. The court also had to consider whether the union's application fulfilled the criteria under section 437 of the Act, which pertains to the conduct of a ballot for protected action.

The Deputy President of the Fair Work Commission, Clancy, reviewed the application and the supporting material, including a declaration from Mr. Andrew Bonello of the AMWU. This declaration detailed the union's bargaining efforts and their commitment to reaching an agreement with Visy Packaging Pty Ltd. The Commission found that the union had indeed been genuinely trying to reach an agreement and that the notification period for the proposed agreement was sufficient. As Visy Packaging Pty Ltd did not object to the application, the court proceeded to determine the matter on the papers without a hearing. Consequently, the Deputy President issued an order permitting the protected action ballot to proceed.

This decision was based on the evidence presented and the satisfaction that the union had fulfilled the necessary conditions under the Fair Work Act. The order was issued in PR746644, allowing the union to proceed with the ballot as per the legal requirements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established